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California 

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Statutes,  etc. 

District  irrigation 

Laws 

of  California 

THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


AX^^ 


DISTRICT  IRRIGATION  LAWS 

|JUN10l937l 


CALIFORKlXt 


[BRARV 


'ECISIUNS  THEREON  BY  THE  SUPREME  COURT. 


NOTES  AND  INDEX 


<'o.Ml'll.i;i»  AND  rREI'ARKD  I'oR  PuiU.lCATIOX   BY 


WILLIAM  H.  H.  ITAirr. 


Attorn  ky-(Iknkrai,. 


I  • 


STATK     OFFICE,    : 


SACRAMENTO: 

in 

:     :    A.    J.    JOHNSTON,    SUPT.    STATK     PRINTING.  .-^^.^| 

1891.  «.  from 

.learins: 


Digitized  by  tine  Internet  Archive 

in  2008  witin  funding  from 

IVIicrosoft  Corporation 


http://www.arcliive.org/details/districtirrigatiOOcali 


DISTRICT  IRRIGATION  LAWS 


CALTFOE:^riA. 


DECISIONS  THEREON  BY  THE  SUPREME  COURT. 


NOTES  AND  INDEX. 


Compiled  and  Prepared  for  Publication  by 


WILLIAM  H.  H.  HAET, 


Attorney-General. 


SACRAMENTO: 


in 
»ard 


STATE    OFFICE, 


A.    J.    JOHNSTON,    SUPT.    STATE    PRINTING,  from 

1891.  rearing 


HI-' 

DISTRICT  IRRIGATION  LAW  OF  CALIFORNIA. 


AN  ACT 


To  provide  for  the  organization  and  government  of  irrigation 
districts,  and  to  provide  for  the  acquisition  of  water  and 
other  property,  and  for  the  distribution  of  water  thereby 
for  irrigation  purposes,  approved  March  7,  1887,  as 
amended  in  1889  and  1891. 

Section  1.  Whenever  fifty,  or  a  majority  of  the  holders  of  title,  or 
evidence  of  title,  to  lands  susceptible  of  one  mode  of  irrigation  from  a 
common  source,  and  by  the  same  system  of  works,  desire  to  provide 
for  the  irrigation  of  the  same,  they  may  propose  the  organization  of  an 
irrigation  district,  under  the  provisions  of  this  Act,  and  when  so  organ- 
ized such  district  shall  have  the  powers  conferred,  or  that  may  hereafter 
be  conferred,  by  law  upon  such  irrigation  districts.  The  equalized 
county  assessment  roll  next  preceding  the  presentation  of  a  petition 
for  the  organization  of  an  irrigation  district,  under  the  provisions  of  this 
Act,  shall  be  sufficient  evidence  of  title  for  the  purposes  of  this  Act. 
{Amendment  approved  March  20,  1891. ) 

The  section  before  amendment  read  as  follows : 

Section  1.  Whenever  fifty,  or  a  majority  of  freeholders  owning  lands  susceptible  of 
one  mode  of  irrigation  from  a  common  source,  and  by  the  same  system  of  works,  desire 
to  provide  for  the  irrigation  of  the  same,  they  may  propose  the  organization  of  an  irriga- 
tion district  under  the  provisions  of  this  Act,  and  when  so  organized  such  districts  shall 
have  the  powers  conferred,  or  that  may  hereafter  be  conferred,  by  law  upon  such  irriga- 
tion districts. 

Sec.  2.  A  petition  shall  first  be  presented  to  the  Board  of  Super- 
visors of  the  county  in  which  the  lands,  or  the  greatest  portion  thereof, 
is  situated,  signed  by  the  required  number  of  holders  of  title,  or  evidence 
of  title,  of  such  proposed  district,  evidenced  as  above  provided,  which 
petition  shall  set  forth  and  particularly  describe  the  proposed  bound- 
aries of  such  district,  and  shall  pray  that  the  same  may  be  organized 
under  the  provisions  of  this  Act.  The  petitioners  must  accompany  the 
petition  with  a  good  and  sufficient  bond,  to  be  approved  by  the  said 
Board  of  Supervisors,  in  double  the  amount  of  the  probable  cost  of 
organizing  such  district,  conditioned  that  the  bondsmen  will  pay  all  the 
said  costs  in  case  said  organization  shall  not  be  effected.  Such  petition 
shall  be  presented  at  a  regular  meeting  of  the  said  Board,  and  shall  be 
published  for  at  least  two  weeks  before  the  time  at  which  the  same  is  to 
be  presented,  in  some  newspaper  printed  and  published  in  the  county 
where  said  petition  is  presented,  together  with  a  notice  stating  the  time 
of  the  meeting  at  which  the  same  will  be  presented;  and  if  any  portion 
of  such  proposed  district  lie  within  another  county,  or  counties,  then 
said  petition  and  notice  shall  be  published  in  a  newspaper  published  in 
each  of  said  counties.  When  such  petition  is  presented,  the  said  Board 
of  Supervisors  shall  hear  the  same,  and  ma}'  adjourn  such  hearing  from 
time  to  time,  not  exceeding  four  weeks  in  all;  and  on  the  final  hearing 


932383 


—   4   — 

• 

may  make  such  changes  in  the  proposed  boundaries  as  they  may  find 
to  be  proper,  and  shall  establish  and  define  such  boundaries;  provided, 
that  said  Board  shall  not  modify  said  boundaries  so  as  to  except  from 
the  operation  of  this  Act  any  territory  within  the  boundaries  of  the  dis- 
trict proposed  by  said  petitioners,  which  is  susceptible  of  irrigation  by 
the  same  system  of  works  applicable  to  the  other  lands  in  such  proposed 
district;  nor  shall  any  lands  which  wiirnot,  in  the  judgment  of  the  said 
Board,  be  benefited  by  irrigation  by  said  system  be  included  within 
such  district;  [provided,  that  any  person  whose  lands  are  susceptible  of 
irrigation  from  the  same  source  may,  in  the  discretion  of  the  Board, 
upon  application  of  the  owner  to  said  Board,  have  such  lands  included 
in  said  district.  Said  Board  shall  also  make  an  order  dividing  said  dis- 
trict into  five  divisions,  as  nearly  equal  in  size  as  may  be  practicable, 
which  shall  be  numbered  first,  second,  third,  fourth,  and  fifth,  and  one 
Director,  who  shall  be  a  freeholder  in  the  division  and  an  elector  and 
resident  of  the  district,  shall  be  elected  by  each  division;  provided,  that 
if  a  majority  of  the  holders  of  title  or  evidence  of  title,  evidenced  as 
above  provided,  petition  for  the  formation  of  a  district,  the  Board  of 
Supervisors  may,  if  so  requested  in  the  petition,  order  that  there  may  be 
either  three  or  five  Directors,  as  said  Board  may  order,  for  such  district, 
and  that  they  may  be  elected  by  the  district  at  large.]  Said  Board  of 
Supervisors  shall  then  give  notice  of  an  election  to  be  held  in  such  pro- 
posed district,  for  the  purpose  of  determining  whether  or  not  the  same 
shall  be  organized  under  the  provisions  of  this  Act.  Such  notice  shall 
describe  the  boundaries  so  established,  and  shall  designate  a  name  for 
such  proposed  district,  and  said  notice  shall  be  published  for  at  least 
three  weeks  prior  to  such  election  in  a  newspaper  published  within  said 
county;  and  if  any  portion  of  such  proposed  district  lie  within  another 
county  or  counties,  then  said  notice  shall  be  published  in  a  newspaper 
published  within  each  of  said  counties.  Such  notice  shall  require'the 
electors  to  cast  ballots,  which  shall  contain  the  words  "  Irrigation  Dis- 
trict— Yes,"  or  "  Irrigation  District — No,"  or  words  equivalent  thereto, 
and  also  the  names  of  persons  to  be  voted  for  to  fill  the  various  elective 
offices  hereinafter  prescribed.  No  person  shall  be  entitled  to  vote  at 
any  election  held  under  the  provisions  of  this  Act,  unless  he  shall 
possess  all  the  qualifications  required  of  electors  under  the  general 
election  laws  of  this  State.     {Amendment  approved  March  20,  1891.) 

The  amendment  to  this  section  is  tliat  portion  contained  in  the  brackets  above.  Before 
the  amendment  the  amended  portion  read  as  follows:  ^^ Provided,  that  any  person  whose 
lands  are  susceptible  of  irrigation  from  the  same  source  shall,  upon  application  of  the 
owner  to  said  Board,  be  entitled  to  have  such  lands  included  in  said  district.  Said  Board 
sliall  also  make  an  order  dividing  said  district  into  five  divisions,  as  nearly  equal  in  size 
as  may  be  practicable,  which  shall  be  numbered  first,  second,  third,  fourth,  and  fifth,  and 
one  Director  shall  be  elected  from  eacli  district." 

The  amendment  to  this  section  was  made  at  the  instance  of  small  districts  where  the 
division  of  a  district  into  five  divisions,  and  the  election  of  a  Director  from  each,  was 
found  to  be  attended  with  great  inconvenience  and  iinnecessary  expense,  in  holdino- 
elections,  etc. 

Sec.  3.  Such  election  shall  be  conducted,  as  nearly  as  practicable,  in 
accordance  with  the  general  laws  of  the  State;  provided,  that  no  partic- 
ular form  of  ballot  shall  be  required.  The  said  Board  of  Supervisors 
shall  meet  on  the  second  Monday  next  succeeding  such  election,  and 
proceed  to  canvass  the  votes  cast  thereat,  and  if  upon  such  canvass  it 
appear  that  at  least  two  thirds  of  all  the  votes  cast  are  "Irrigation 
District — Yes,"  the  said  Board  shall,  by  an  order  entered  on  its  minutes, 


—   5   — 

• 

declare  such  territory  duly  organized  as  an  irrigation  district,  under  the 
name  and  style  theretofore  designated,  and  shall  declare  the  persons 
receiving,  respectively,  the  highest  number  of  votes  for  such  several 
offices  to  be  dul}^  elected  to  such  offices.  [And  no  action  shall  be 
commenced  or  maintained,  or  defense  made  afiecting  the  validity  of  the 
organization,  unless  the  same  shall  have  been  commenced  or  made 
within  two  years  after  the  marking  and  entering  of  said  order.]  Said 
Board  shall  cause  a  copy  of  such  order,  duly  certified,  to  be  immediately 
filed  for  record  in  the  office  of  the  County  Recorder  of  each  county  in 
which  any  portion  of  such  lands  are  situated,  and  must  also  immedi- 
ately forward  a  copy  thereof  to  the  Clerk'  of  the  Board  of  Supervisors 
of  each  of  the  counties  in  which  any  portion  of  the  district  may  lie; 
and  no  Board  of  Supervisors  of  an}'-  county  including  any  portion  of 
such  district  shall,  after  the  date  of  the  organization  of  such  district, 
allow  another  district  to  be  formed  including  any  of  the  lands  in  such 
district,  without  the  consent  of  the  Board  of  Directors  thereof;  and 
from  and  after  the  date  of  such  filing,  the  organization  of  such  district 
shall  be  complete,  and  the  officers  thereof  shall  be  entitled  to  enter 
immediately  upon  the  duties  of  their  respective  offices  upon  qualifying 
in  accordance  Avith  law,  and  shall  hold  such  offices,  respectively,  until 
their  successors  are  elected  and  cj[ualified.  For  the  purposes  of  the 
election  above  pl'ovided  for,  the  said  Board  of  Supervisors  must  estab- 
lish a  convenient  number  of  election  precincts  in  said  proposed  district, 
and  define  the  boundaries  thereof,  which  said  precincts  may  thereafter 
be  changed  by  the  Board  of  Directors  of  such  district.  [In  any  district 
the  Board  of  Directors  thereof  may,  upon  the  presentation  of  a  petition 
therefor,  by  a  majority  of  the  holders  of  title  or  evidence  of  title  of  said 
district,  evidenced  as  above  provided,  order  that  on  and  after  the  next 
ensuing  general  election  for  the  district,  there  shall  be  either  three  or 
five  Directors,  as  said  Board  may  order,  and  that  they  shall  be  elected 
by  the  district  at  large,  or  by  divisions,  as  so  petitioned  and  ordered; 
and  after  such  order  such  Directors  shall  be  so  elected.]  {Amendment 
approved  March  20,  1891.) 

The  portions  included  in  brackets  in  this  section  is  new  matter. 

Sec.  4.  An  election  shall  be  held  in  each  district  on  the  first  Wednes- 
day in  February,  eighteen  hundred  and  ninety-three,  and  on  the  first 
Wednesday  in  February  in  each  second  year  thereafter,  at  which  an 
Assessor,  a  Collector,  and  a  Treasurer,  and  a  Board  of  Directors  for  the 
district  shall  be  elected.  The  person  receiving  the  highest  number  of 
votes  for  any  office  to  be  filled  at  such  election  is  elected  thereto,  and 
shall  hold  office  from  the  first  Tuesday  in  March  next  after  for  two  years, 
and  until  his  successor  is  elected  and  qualified.  Within  ten  days  after 
receiving  their  certificates  of  election,  hereinafter  provided  for,  said  offi- 
cers shall  take  and  subscribe  the  official  oath  and  file  the  same  in  the 
office  of  the  Board  of  Directors,  and  execute  the  bond  hereinafter  provided 
for.  The  Assessor  shall  execute  an  official  bond  in  the  sum  of  five  thou- 
sand dollars,  and  the  Collector  an  official  bond  in  the  sum  of  twenty 
thousand  dollars,  and  the  District  Treasurer  an  official  bond  in  the  sum 
of  fifty  thousand  dollars;  each  of  said  bonds  to  be  approved  by  the 
Board  of  Directors;  and  each  member  of  said  Board  of  Directors  shall 
execute  an  official  bond  in  the  sum  of  five  thousand  dollars,  which  said 
bonds  shall  be  approved  b}'-  the  Judge  of  the  Superior  Court  of  said 


—    6    — 

county  where  such  organization  was  elfected,  and  shall  be  recorded  in 
the  office  of  the  County  Recorder  thereof,  and  filed  with  the  Secretary 
of  said  Board.  All  official  bonds  herein  provided  for  shall  be  in  the 
form  prescribed  by  law  for  the  official  bonds  of  county  officers.  {Aviend- 
ment  approved  March  SO,  1891.) 

The  amendments  to  this  section  changed  the  time  of  holding  elections  for  the  election 
of  officers  from  the  first  Wednesday  in  April  in  even  numbered  years,  to  the  first  Wednes- 
day in  February  in  odd  numbered  years,  and  by  reason  of  the  failure  to  hold  an  election 
in  April,  1892,  the  officers  elected  in  April,  1890,  retain  their  offices  until  March,  1893.  By 
the  amendment  the  bonds  of  the  Directors  and  the  Assessor  are  reduced  to  five  thousand 
dollars. 

Sec.  5.  Fifteen  days  before  any  election  held  under  this  Act,  subse- 
quent to  the  organization  of  any  district,  the  Secretary  of  the  Board  of 
Directors  shall  cause  notices  to  be  posted  in  three  public  places  in  each 
election  precinct,  of  the  time  and  place  of  holding  the  election,  and  shall 
also  post  a  general  notice  of  the  same  in  the  office  of  said  Board,  which 
shall  be  established  and  kept  at  some  fixed  place  to  be  determined  by 
said  Board,  specifying  the  polling  places  of  each  precinct.  Prior  to  the 
time  for  posting  the  notices,  the  Board  must  appoint  for  each  precinct, 
from  the  electors  thereof,  one  Inspector  and  two  Judges,  who  shall  consti- 
tute a  Board  of  Election  for  such  precinct.  If  the  Board  fail  to  appoint 
a  Board  of  Election,  or  the  members  appointed  do  not  attend  at  the 
opening  of  the  polls  on  the  morning  of  election,  the  electors  of  the  pre- 
cinct present  at  that  hour  may  appoint  the  Board,  or  supply  the  place 
of  an  absent  member  thereof.  The  Board  of  Directors  must,  in  its  order 
appointing  the  Board  of  Election,  designate  the  house  or  place  within 
the  precinct  where  the  election  must  be  held. 

Sec.  6.     The  Inspector  is  Chairman  of  the  Election  Board,  and  may: 

First — Administer  all  oaths  required  in  the  progress  of  an  election. 

Second — Appoint  Judges  and  Clerks,  if,  during  the  progress  of  the 
election,  any  Judge  or  Clerk  cease  to  act.  Any  member  of  the  Board  of 
Election,  or  any  Clerk  thereof,  may  administer  and  certify  oaths  required 
to  be  administered  during  the  progress  of  an  election.  The  Board  of 
Election  for  each  precinct  must,  before  opening  the  polls,  appoint  two 
persons  to  act  as  Clerks  of  the  election.  Before  opening  the  polls,  each 
member  of  the  Board  and  each  Clerk  must  take  and  subscribe  an  oath 
to  faithfully  perform  the  duties  imposed  upon  them  by  law.  Any  elector 
of  the  precinct  may  administer  and  certify  such  oath.  The  polls  must 
be  opened  one  hour  after  sunrise  on  the  morning  of  the  election,  and  be 
kept  open  until  sunset,  when  the  same  must  be  closed.  The  provisions 
of  the  Political  Code  concerning  the  form  of  ballots  to  be  used  shall  not 
apply  to  elections  held  under  this  Act. 

Sec.  7.  Voting  may  commence  as  soon  as  the  polls  are  opened,  and 
maybe  continued  during  all  the  time  the  polls  remain  opened,  and  shall 
be  conducted  as  nearly  as  practicable  in  accordance  with  the  provisions 
of  chapter  nine  of  title  two  of  part  three  of  the  Political  Code  of  this 
State.  As  soon  as  the  polls  are  closed,  the  Judges  shall  open  the  ballot- 
box  and  commence  counting  the  votes;  and  in  no  case  shall  the  ballot- 
box  be  removed  from  the  room  in  which  the  election  is  held  until  all  the 
ballots  have  been  counted.  The  counting  of  ballots  shall  in  all  cases 
be  public.  The  ballots  shall  be  taken  out,  one  by  one,  by  the  Inspector 
or  one  of  the  Judges,  who  shall  open  them  and  read  aloud  the  name  of 
each  person  contained  therein,  and  the  office  for  which  every  such  per- 


son  is  voted  for.  Each  Clerk  shall  write  down  each  office  to  be  filled, 
and  the  name  of  each  person  voted  for  for  such  office,  and  shall  keep 
the  number  of  votes  by  tallies,  as  they  are  read  aloud  by  the  Inspector 
or  Judge.  The  counting  of  votes  shall  be  continued  without  adjourn- 
ment until  all  have  been  counted. 

Sec.  8.  As  soon  as  all  the  votes  are  read  off  and  counted,  a  certificate 
shall  be  drawn  up  on  each  of  the  papers  containing  the  poll  list  and 
tallies,  or  attached  thereto,  stating  the  number  of  votes  each  one  voted 
for  has  received,  and  designating  the  office  to  fill  which  he  was  voted  for, 
which  number  shall  be  written  in  figures  and  in  words  at  full  length. 
Each  certificate  shall  be  signed  by  the  Clerk,  Judge,  and  the  Inspector. 
One  of  said  certificates,  with  the  poll  list  and  the  tally  paper  to  which  it 
is  attached,  shall  be  retained  by  the  Inspector,  and  preserved  by  him  at 
least  six  months.  The  ballots  shall  be  strung  upon  a  cord  or  thread  by 
the  Inspector,  during  the  counting  thereof,  in  the  order  in  which  they 
are  entered  ujDon  the  tally  list  by  the  Clerks;  and  said  ballots,  together 
with  the  other  of  said  certificates,  with  the  poll  list  and  tally  paper  to 
which  it  is  attached,  shall  be  sealed  by  the  Inspector  in  the  presence  of 
the  Judges  and  Clerks,  and  indorsed  "  Election  Returns  of  (naming  the 
precinct)  Precinct,"  and  be  directed  to  the  Secretary  of  the  Board  of 
Directors,  and  shall  be  immediately  delivered  by  the  Inspector,  or  by 
some  other  safe  aftd  responsible  carrier  designated  by  said  Inspector,  to 
said  Secretary,  and  the  ballots  shall  be  kept  unopened  for  at  least  six 
months,  and  if  any  person  be  of  the  opinion  that  the  vote  of  any  pre- 
cinct has  not  been  correctly  counted,  he  may  appear  on  the  clay  appointed 
for  the  Board  of  Directors  to  open  and  canvass  the  returns,  and  demand 
a  recount  of  the  vote  of  the  precinct  that  is  so  claimed  to  have  been 
incorrectly  counted. 

Sec.  9.  No  list,  tally  paper,  or  certificate  returned  from  any  election, 
shall  be  set  aside  or  rejected  for  want  of  form,  if  it  can  be  satisfactorily 
understood.  The  Board  of  Directors  must  meet  at  its  usual  place  of 
meeting  on  the  first  Monday  after  each  election  to  canvass  the  returns. 
If,  at  the  time  of  meeting,  the  returns  from  each  precinct  in  the  district 
in  which  the  polls  were  opened  have  been  received,  the  Board  of  Direct- 
ors must  then  and  there  proceed  to  canvass  the  returns;  but  if  all  the 
returns  have  not  been  received,  the  canvass  must  be  postponed  from  day 
to  day  until  all  the  returns  have  been  received,  or  until  six  postpone- 
ments have  been  had.  The  canvass  must  be  made  in  public  and  by 
opening  the  returns  and  estimating  the  vote  of  the  district  for  each  per- 
son voted  for,  and  declaring  the  result  thereof. 

Sec.  10.  The  Secretary  of  the  Board  of  Directors  must,  as  soon  as 
the  result  is  declared,  enter  in  the  records  of  such  Board  a  statement 
of  such  result,  which  statement  must  show: 

First — The  whole  number  of  votes  cast  in  the  district,  [and  in  each 
division  of  the  district]. 

Second — The  names  of  the  persons  voted  for. 

Third — The  office  to  fill  which  each  person  was  voted  for. 

Fourth — The  number  of  votes  given  in  each  precinct  to  each  of  such 
persons. 

Fifth — The  number  of  votes  given  in  [each  division  for  the  office  of 
Director,  and  the  number  of  votes  given  in  the  district  for  the  offices  of 
Assessor,  Collector,  and  Treasurer]. 

The   Board  of  Directors  must  declare  elected  the  persons  having  the 


highest  number  of  votes  given  for  each  office.  The  Secretary  must 
immediately  make  out  and  deliver  to  such  person  a  certificate  of  election, 
signed  by  him  and  authenticated  with  the  seal  of  the  Board.  In  case 
of  a  vacancy  in  the  office  of  Assessor,  Collector,  or  Treasurer,  the 
vacancy  shall  be  filled  by  appointment  of  the  Board  of  Directors.  In 
case  of  a  vacancy  in  the  office  of  Director,  the  vacancy  shall  be  filled  by 
appointment  by  the  Board  of  Supervisors  of  the  county  where  the  office 
of  such  Board  of  Directors  is  situated,  from  the  division  in  which  the 
vacancy  occurred.  An  officer  appointed  as  above  provided  shall  hold 
his  office  until  the  next  regular  election  for  said  district,  and  until  his 
successor  is  elected  and  qualified.  {Amendment  approved  February  16, 
1889.) 

The  portions  included  in  brackets  is  new  matter,  and  tlie  portion  included  in  the  bracket 
in  the  tlfth  subdivision  is  substituted  in  place  of  the  words  "the  district  to  each  of  such 
persons." 

Sec.  11.  On  the  first  Tuesday  in  March  next  following  their  election, 
the  Board  of  Directors  shall  meet  and  organize  as  a  Board,  elect  a  Presi- 
dent from  their  number,  and  appoint  a  Secretary,  [who  shall  each  hold 
office  during  the  pleasure  of  the  Board.]  The  Board  shall  have  the 
power,  and  it  shall  be  their  duty,  to  manage  and  conduct  the  business 
and  affairs  of  the  district;  make  and  execute  all  necessary  contracts; 
employ  and  appoint  such  agents,  officers,  and  employes  as  may  be 
required,  and  prescribe  their  duties;  establish  equitable  by-laws,  rules, 
and  regulations  for  the  distribution  and  use  of  water  among  the  owners 
of  said  lands,  and  generally  to  perform  all  such  acts  as  shall  be  neces- 
sar}^  to  fully  carry  out  the  purposes  of  this  Act.  The  said  by-laws,  rules, 
and  regulations  must  be  printed  in  convenient  form  for  distribution  in 
the  district.  And  it  is  hereby  expressly  provided  that  all  waters  dis- 
tributed for  irrigation  purposes  shall  be  apportioned  ratably  to  each  land 
owner  upon  the  basis  of  the  ratio  which  the  last  assessment  of  such  owner 
for  district  purposes  within  said  district  bears,  to  the  whole  sum  assessed 
upon  the  district;  provided,  that  any  land  owner  may  assign  the  right  to 
the  whole  or  any  portion  of  the  waters  so  apportioned  to  him.  ( Amend- 
ment approved  March  20,  1891.) 

The  time  of  the  organization  of  the  Board  is  changed  by  this  amendment  from  the  first 
Wednesday  in  May  to  the  first  Tuesday  in  March,  to  correspond  with  amendment  to 
section  four. 

Sec.  12.  The  Board  of  Directors  shall  hold  a  regular  monthly  meet- 
ing, in  their  office,  on  the  first  Tuesday  in  every  month,  and  such  special 
meetings  as  may  be  required  for  the  proper  transaction  of  business; 
provided,  that  all  special  meetings  must  be  ordered  by  a  majority  of  the 
Board.  The  order  must  be  entered  of  record,  and  five  days'  notice 
thereof  must,  by  the  Secretary,  be  given  to  each  member  not  joining  in 
the  order.  The  order  must  specify  the  business  to  be  transacted,  and 
none  other  than  that  specified  must  be  transacted  at  such  special  meet- 
ing. All  meetings  of  the  Board  must  be  public,  and  three  members 
shall  constitute  a  quorum  for  the  transaction  of  business;  but  on  all 
questions  requiring  a  vote  there  shall  be  a  concurrence  of  at  least  three 
members  of  said  Board.  All  records  of  the  Board  shall  be  open  to  the 
inspection  of  any  elector  during  business  hours.  The  Board  and  its 
agents  and  employes  shall  have  the  right  to  enter  uj)on  any  land  to 


—   9    — 

make  surveys,  and  may  locate  the  necessary  irrigation  works  and  the 
line  for  any  canal  or  canals,  and  the  necessary  branches  for  the  same, 
on  any  lands  which  may  be  deemed  best  for  such  location.  Said  Board 
shall  also  have  the  right  to  acquire,  either  by  purchase  or  condemnation, 
[or  other  legal  means,]  all  lands,  and  waters  and  water  rights,  and  other 
property  necessary  for  the  construction,  use,  supply,  maintenance,  repair, 
and  improvements  of  said  canal  or  canals  and  works,  including  canals 
and  works  constructed  and  being  constructed  by  private  owners,  lands 
for  reservoirs  for  the  storage  of  needful  waters,  and  all  necessary  appur- 
tenances. In  case  of  pvirchase,  the  bonds  of  the  district  hereinafter 
provided  for  may  be  used  at  their  par  value  in  payment;  and  in  case  of 
condemnation  the  Board  shall  proceed,  in  the  name  of  the  district, 
under  the  provisions  of  title  seven  of  part  three  of  the  Code  of  Civil 
Procedure.  Said  Board  may  also  construct  the  necessary  dams,  reser- 
voirs, and  works  for  the  collection  of  water  for  said  district,  and  do  any 
and  every  lawful  act  necessary  to  be  done  that  sufficient  water  may  be 
furnished  to  each  land  owner  in  said  district  for  irrigation  purposes. 
The  use  of  all  water  required  for  the  irrigation  of  the  lands  of  any  dis- 
trict formed  under  the  provisions  of  this  Act,  together  with  the  rights 
of  way  for  canals  and  ditches,  sites  for  reservoirs,  and  all  other  property 
required  in  fully  carrying  out  the  provisions  of  this  Act,  is  hereby 
declared  to  be  a  public  use,  subject  to  the  regulation  and  control  of  the 
State,  in  the  manner  prescribed  by  law.  {Amendment  approved  March 
20,  1891.) 

The  following  sentence  in  the  law  before  amendment  read  as  follows :  "The  Board,  and 
its  agents  and  employes,  shall  have  the  right  to  enter  upon  any  land  in  the  district,  to 
make  surveys,  and  may  locate  the  line  for  any  canal  or  canals,  and' the  necessary  branches 
for  the  same,  on  any  of  said  lands  which  may  be  deemed  best  for  such  location." 

The  words  in  italics  were  stricken  out  and  tlie  words  in  brackets  inserted. 

Sec.  13.  The  legal  title  to  all  property  acquired  under  the  provisions 
of  this  Act  shall  immediately  and  by  operation  of  law  vest  in  such  irri- 
gation district,  and  shall  be  held  by  such  district  in  trust  for  and  is 
hereby  dedicated  and  set  apart  to  the  uses  and  purposes  set  forth  in  this 
Act.  And  said  Board  is  hereby  authorized  and  empowered  to  hold,  use, 
acquire,  manage,  occupy,  and  possess  said  property  as  herein  provided. 

Sec.  14.  The  said  Board  is  hereby  authorized  and  empowered  to 
take  conveyances  or  other  assurances  for  all  property  acquired  by  it 
under  the  provisions  of  this  Act,  in  the  name  of  such  irrigation  district, 
to  and  for  the  uses  and  purposes  herein  expressed,  and  to  institute  and 
maintain  any  and  all  actions  and  proceedings,  suits  at  law  or  in  equity, 
necessary  or  proper  in  order  to  fully  carry  out  the  provisions  of  this 
Act,  or  to  enforce,  maintain,  protect,  or  preserve  any  and  all  rights, 
privileges,  and  immunities  created  by  this  Act,  or  acquired  in  pursuance 
thereof.  And  in  all  Courts,  actions,  suits,  or  proceedings,  the  said  Board 
may  sue,  appear,  and  defend,  in  person  or  by  attorneys,  and  in  the  name 
of  such  irrigation  district. 

Sec.  15.  For  the  purpose  of  constructing  necessary  irrigating  canals 
and  works,  and  acquiring  the  necessary  property  and  rights  therefor, 
and  otherwise  carrying  out  the  provisions  of  this  Act,  the  Board  of 
Directors  of  any  such  district  must,  as  soon  after  such  district  has  been 
organized  as  may  be  practicable,  and  whenever  thereafter  the  Construc- 
tion Fund  has  been  exhausted  by  expenditures  herein  authorized  tliere- 
from,  and  the  Board  deem  it  necessary  or  expedient  to  raise  additional 


—  10  — 

money  for  said  purposes,  estimate  and  determine  the  amount  of  money 
necessary  to  be  raised,  and  shall  immediately  thereafter  call  a  special 
election,  at  which  shall  be  submitted  to  the  electors  of  such  district 
possessing  the  qualifications  prescribed  by  this  Act,  the  question 
whether  or  not  the  bonds  of  said  district  in  the  amount  as  determined 
shall  be  issued.  Notice  of  such  election  must  be  given  by  posting 
notices  in  three  public  places  in  each  election  precinct  in  said  district 
for  at  least  twenty  days,  and  also  by  publication  of  such  notice  in  some 
newspaper  published  in  the  county  where  the  office  of  the  Board  of 
Directors  of  such  district  is  required  to  be  kept,  once  a  week  for  at  least 
three  successive  weeks.  Such  notices  must  specify  the  time  of  holding 
the  election,  the  amount  of  bonds  proposed  to  be  issued;  and  said  elec- 
tion must  be  held  and  the  result  thereof  determined  and  declared  in 
all  respects  as  nearly  as  practicable  in  conformity  with  the  provisions 
of  this  Act  governing  the  election  of  officers;  provided,  that  no  infor- 
malities in  conducting  such  an  election  shall  invalidate  the  same,  if  the 
election  shall  have  been  otherwise  fairly  conducted.  At  such  election 
the  ballots  shall  contain  the  words  "  Bonds — Yes,"  or  "  Bonds — No," 
or  words  equivalent  thereto.  If  a  majority  of  the  votes  cast  are  "  Bonds — 
Yes,"  the  Board  of  Directors  shall  cause  bonds  in  said  amount  to  be 
issued;  if  a  majority  of  the  votes  cast  at  any  bond  election  are  "  Bonds — 
No,"  the  result  of  such  election  shall  be  so  declared  and  entered  of 
record.  And  whenever  thereafter  said  Board  in  its  judgment  deems  it 
for  the  best  interest  of  the  district  that  the  question  of  issuance  of 
bonds  in  said  amount,  or  any  amount,  shall  be  submitted  to  said  elect- 
ors, it  shall  so  declare  of  record  in  its  minutes,  and  may  thereupon 
submit  such  questions  to  said  electors  in  the  same  manner  and  with 
like  effect  as  at  such  previous  election.  Said  bonds  shall  be  payable  in 
gold  coin  of  the  United  States,  in  ten  series,  as  follows,  to  wit:  At  the 
expiration  of  eleven  years,  five  per  cent  of  the  whole  number  of  said 
bonds;  at  the  expiration  of  twelve  years,  six  per  cent;  at  the  expira- 
tion of  thirteen  years,  seven  per  cent;  at  the  expiration  of  fourteen 
years,  eight  per  cent;  at  the  expiration  of  fifteen  years,  nine  per  cent; 
at  the  expiration  of  sixteen  years,  ten  per  cent;  at  the  expiration  of 
seventeen  years,  eleven  per  cent;  at  the  expiration  of  eighteen  years, 
thirteen  per  cent;  at  the  expiration  of  nineteen  years,  fifteen  per  cent; 
at  the  expiration  of  twenty  years,  sixteen  per  cent;  and  shall  bear 
interest  at  the  rate  of  six  per  cent  per  annum,  payable  semi-annually, 
on  the  first  day  of  January  and  July  of  each  year.  The  principal  and 
interest  shall  be  payable  at  the  place  designated  therein.  Said  bonds 
shall  be  each  of  the  denomination  of  not  less  than  one  hundred  dollars 
nor  more  than  five  hundred  dollars;  shall  be  negotiable  in  form,  signed 
by  the  President  and  Secretary,  and  the  seal  of  the  Board  of  Directors 
shall  be  affixed  thereto.  Each  issue  shall  be  numbered  consecutively 
as  issued,  and  the  bonds  of  each  issue  shall  be  numbered  consecutively, 
and  bear  date  at  the  time  of  their  issue.  Coupons  for  the  interest  shall 
be  attached  to  each  bond,  signed  by  the  Secretary.  Said  bonds  shall 
express  on  their  face  that  they  were  issued  by  authority  of  this  Act, 
stating  its  title  and  date  of  approval,  and  shall  also  so  state  the  number 
of  the  issue  of  which  such  bonds  are  a  part.  The  Secretary  shall  keep 
a  record  of  the  bonds  sold,  their  number,  the  date  of  sale,  the  price 
received,  and  the  name  of  the  purchaser.  In  case  the  money  raised  by 
the  sale  of  all  bonds  issued  be  insufficient  for  the  completion  of  the 


—  11  — 

plan  of  canal  and  works  adopted,  and  additional  bonds  be  not  voted, 
it  shall  be  the  duty  of  the  Board  of  Directors  to  provide  for  the  com- 
pletion of  said  plan  by  levy  of  assessments  therefor.  It  shall  be  lawful 
for  any  district,  which  has  heretofore  issued  bonds  under  the  law  then 
in  force,  to  issue  in  place  thereof  an  equal  amount  of  bonds  in  accord- 
ance with  this  amendment,  and  to  sell  the  same,  or  any  part  thereof,_as 
hereinafter  provided,  or  exchange  the  same,  or  any  part  thereof,  with 
the  holders  of  such  previously  issued  bonds  which  may  be  outstanding, 
upon  such  terms  as  may  be  agreed  upon  between  the  Board  of  Directors 
of  the  district  and  the  holders  of  such  outstanding  bonds;  provided, 
that  said  Board  shall  not  exchange  any  such  bonds  for  a  less  amount  in 
par  value  of  the  bonds  received.  All  of  such  old  issue,  in  place  of 
which  new  bonds  are  issued,  shall  be  destroyed  whenever  lawfully  in 
possession  of  said  Board.     {Amendment  approved  March  20,  1891.) 

Such  important  changes  were  made  in  the  above  section  by  the  amendment  that  it  is 
deemed  best  that  the  entire  section,  as  it  stood  before  amendment,  should  be  recited.  It 
read  as  follows : 

Sec.  15.  For  the  purpose  of  constructing  necessary  irrigating  canals  and  works  and 
acquiring  the  necessary  property  and  rights  therefor,  and  otherwise  carrying  out  the  pro- 
visions of  this  Act,  the  Board  of  Directors  of  any  such  district  must,  as  soon  after  such 
district  has  been  organized  as  may  be  practicable,  estimate  and  determine  the  amount  of 
money  necessary  to  be  raised,  and  shall  immediately  thereupon  call  a  special  election,  at 
which  shall  be  submitted  to  the  electors  of  such  district  possessing  the  qualifications  pre- 
scribed by  this  Act,  the  question  whether  or  not  the  bonds  of  said  district  shall  be  issued 
in  the  amount  so  determined.  Notice  of  such  election  must  be  given  by  posting  notices 
in  three  public  places  in  each  election  precinct  in  said  district  for  at  least  twenty  days, 
and  also  by  P^^blication  of  such  notice  in  some  newspaper  published  in  the  county,  where 
the  office  of  the  Board  of  Directors  of  such  district  is  required  to  be  kept,  once  a  week  for 
at  least  three  successive  weeks.  Such  notices  must  specify  the  time  of  holding  the  elec- 
tion, the  amount  of  bonds  proposed  to  be  issued,  and  said  election  must  be  held  and  the 
result  thereof  determined  and  declared  in  all  respects  as  nearly  as  practicable  in  con- 
formity with  the  provisions  of  this  Act  governing  the  election  of  officers ;  provided,  that 
no  informalities  in  conducting  such  an  election  shall  invalidate  the  same,  if  the  election 
shall  have  been  otherwise  fairly  conducted.  At  such  election  the  ballots  shall  contain 
the  words  " Bonds— Yes,"  or  "Bonds— No,"  or  words  equivalent  thereto.  If  a  majority 
of  the  votes  cast  are  "Bonds— Yes,"  the  Board  of  Directors  shall  immediately  cause 
bonds  in  said  amount  to  be  issued ;  said  bonds  shall  be  payable  in  gold  coin  of  the  United 
States,  in  installments  as  follows,  to  wit:  At  the  expiration  of  eleven  years  not  less  than 
five  per  cent  of  said  bonds;  at  the  expiration  of  twelve  years  not  less  than  six  per  cent; 
at  the  expiration  of  thirteen  years  not  less  than  seven  per  cent ;  at  the  expiration  of  four- 
teen years  not  less  than  eight  per  cent;  at  the  expiration  of  fifteen  years  not  less  than 
nine  per  cent ;  at  the  expiration  of  sixteen  years  not  less  than  ten  per  cent ;  at  the  expira- 
tion of  seventeen  years  not  less  than  eleven  per  cent;  at  the  expiration  of  eighteen  years 
not  less  than  thirteen  per  cent;  at  the  expiration  of  nineteen  years  not  less  than  fifteen 
per  cent ;  and  for  the  twentieth  year  a  percentage  sufficient  to  pay  off'  said  bonds ;  and 
shall  bear  interest  at  the  rate  of  six  per  cent  per  annum,  payable  semi-annually  on  the 
first  day  of  January  and  July  of  each  year.  The  principal  and  interest  shall  be  payable 
at  the  office  of  the  Treasurer  of  the  district.  Said  bonds  shall  be  each  of  the  denomina- 
tion of  not  less  than  one  hundred  dollars  nor  more  than  five  hundred  dollars;  shall  be 
negotiable  in  form,  signed  by  the  President  and  Secretary,  and  the  seal  of  the  Board  of 
Directors  shall  be  affixed  thereto.  They  shall  be  numbered  consecutively  as  issued,  and 
hear  date  at  the  time  of  their  issue.  Coupons  for  the  interest  shall  be  attached  to  each 
bond,  signed  by  the  Secretary.  Said  bonds  shall  express  on  their  face  that  they  were 
issued  by  authority  of  this  Act,  stating  its  title  and  date  of  approval.  The  Secretary 
shall  keep  a  record  of  the  bonds  sold,  tlieir  number,  the  date  of  sale,  the  price  received, 
and  the  name  of  the  purchaser. 

Sec.  16.  The  Board  may  sell  said  bonds  from  time  to  time,  in  such 
quantities  as  may  be  necessary  and  most  advantageous,  to  raise  money 
for  the  construction  of  said  canals  and  works,  the  acquisition  of  said 
property  and  rights,  and  otherwise  to  fully  carry  out  the  objects  and 
purposes  of  this  Act.  Before  making  any  sale  the  Board  shall,  at  a 
meeting,  by  resolution,  declare  its  intention  to  sell  a  specified  amount 
of  the  bonds,  and  the  day  and  hour  and  place  of  such  sale,  and  shall  cause 
such  resolution  to  be  entered  in  the  minutes,  and  notice  of  the  sale  to 


—  12  — 

be  given,  by  publication  thereof  at  least  twenty  days  in  a  daily  news- 
paper published  in  each  of  the  cities  of  San  Francisco,  Sacramento,  , 
and  Los  Angeles,  and  in  any  other  newspaper,  at  their  discretion.  The 
notice  shall  state  that  sealed  proposals  will  be  received  by  the  Board  at 
their  office,  for  the  purchase  of  the  bonds,  till  the  day  and  hour  named 
in  the  resolution.  At  the  time  appointed  the  Board  shall  open  the  pro- 
posals, and  award  the  purchase  of  the  bonds  to  the  highest  responsible 
bidder,  and  may  reject  all  bids;  but  said  Board  shall  in  no  event  sell 
any  of  the  said  bonds  for  less  than  ninety  per  cent  of  the  face  valjie 
thereof. 

Sec.  17.  Said  bonds,  and  the  interest  thereon,  shall  be  paid  by 
revenue  derived  from  an  annual  assessment  upon  the  real  property  of 
the  district;  and  all  the  real  property  in  the  district  shall  be  and  remain 
liable  to  be  assessed  for  such  payments  as  hereinafter  provided. 

Sec.  18.  The  Assessor  must,  between  the  first  Monday  in  March  and 
the  first  Monday  in  June,  in  each  year,  assess  all  real  property  in  the 
district,  to  the  persons  who  own,  claim,  have  the  possession,  or  control 
thereof,  at  its  full  cash  value.  He  must  prepare  an  assessment  book, 
with  appropriate  headings,  in  which  must  be  listed  all  such  property 
within  the  district,  in  w^hich  must  be  specified,  in  separate  columns, 
under  the  appropriate  head: 

First — The  name  of  the  person  to  whom  the  property  is  assessed.  If 
the  name  is  not  known  to  the  Assessor,  the  property  shall  be  assessed 
to  "  unknown  owners." 

Second — Land  by  township,  range,  section,  or  fractional  section,  and 
when  such  land  is  not  a  congressional  division  or  subdivision,  by  metes 
and  bounds,  or  other  description  sufficient  to  identify  it,  giving  an 
estimate  of  the  number  of  acres,  locality,  and  the  improvements  thereon. 

Third — City  and  town  lots,  naming  the  city  or  town,  and  the  number 
and  block,  according  to  the  system  of  numbering  in  such  city  or  town, 
and  the  improvements  thereon. 

Fourth — The  cash  value  of  real  estate,  other  than  city  or  town  lots. 

Fifth — The  cash  value  of  improvements  on  such  real  estate. 

Sixth — The  cash  value  of  city  and  town  lots. 

Seventh — The  cash  value  of  improvements  on  city  and  town  lots. 

Eighth — The  cash  value  of  improvements  on  real  estate  assessed  to. 
persons  other  than  the  owners  of  the  real  estate. 

Ninth — The  total  value  of  all  property  assessed. 

Tenth — The  total  value  of  all  property  after  equalization  by  the  Board 
of  Directors. 

Eleventh — Such  other  things  as  the  Board  of  Directors  may  require. 

[Any  property  which  may  have  escaped  the  payment  of  any  assess- 
ment for  any  year,  shall,  in  addition  to  the  assessment  for  the  then  cur- 
rent year,  be  assessed  for  such  year  with  the  same  effect  and  with  the 
same  penalties  as  are  provided  for  such  current  year.]  {Amendment 
approved  March  SI,  1891.) 

The  words  in  brackets  is  new  matter. 

Sec.  19.  The  Board  of  Directors  must  allow  the  Assessor  as  many 
deputies,  to  be  appointed  by  him,  as  will,  in  the  judgment  of  the  Board, 
ena1)le  him  to  complete  the  assessment  within  the  time  herein  pre- 
scribed. The  Board  must  fix  the  compensation  of  such  deputies,  which 
shall  be  paid  out  of  the  Treasury  of  the  district.     The  compensation 


—  13  — 

must  not  exceed  five  dollars  per  day  for  each  deputy,  for  the  time 
actually  engaged,  nor  must  any  allowance  be  made  but  for  work  done 
between  the  first  Monday  in  March  and  the  first  Monday  in  August  in 
each  year. 

Sec.  20.  On  or  before  the  first  Monday  in  August  in  each  year,  the 
Assessor  must  complete  his  assessment  book,  and  deliver  it  to  the  Secre- 
tary of  the  Board,  who  must  immediately  give  notice  thereof,  and  of 
the  time  the  Board  of  Directors,  acting  as  a  Board  of  Equalization,  will 
meet  to  equalize  assessments,  by  publication  in  a  newspaper  published 
in  each  of  the  counties  comprising  the  district.  The  time  fixed  for  the 
meeting  shall  not  be  less  than  twenty  nor  more  than  thirty  days  from 
the  first  publication  of  the  notice;  and  in  the  meantime  the  assessment 
book  must  remain  in  the  office  of  the  Secretary  for  the  inspection  of  all 
persons  interested. 

Sec.  21.  Upon  the  day  specified  in  the  notice  required  by  the  pre- 
ceding section  for  the  meeting,  the  Board  of  Directors,  which  is  hereby 
constituted  a  Board  of  Equalization  for  that  purpose,  shall  meet  and 
continue  in  session  from  day  to  day,  as  long  as  may  be  necessary,  not 
to  exceed  ten  days,  exclusive  of  Sundays,  to  hear  and  determine  such 
objections  to  the  valuation  and  assessment  as  may  come  before  them; 
and  the  Board  may  change  the  valuation  as  may  be  just.  The  Secretary 
of  the  Board  shall  be  present  during  its  sessions,  and  note  all  changes 
made  in  the  valuation  of  property,  and  in  the  names  of  the  persons  whose 
property  is  assessed;  and  within  ten  days  after  the  close  of  the  session 
he  shall  have  the  total  values,  as  finally  equalized  by  the  Board,  extended 
into  columns  and  added. 

Sec.  22.  The  Board  of  Directors  shall  then  levy  an  assessment  suf- 
ficient to  raise  the  annual  interest  on  the  outstanding  bonds,  and  at  the 
expiration  of  ten  years  after  the  issuing  of  bonds  of  any  issue  must 
increase  said  assessment  to  an  amount  sufficient  to  raise  a  sum  sufficient 
to  pay  the  principal  of  the  outstanding  bonds  as  they  mature.  The  Sec- 
retary of  the  Board  must  compute  and  enter  in  a  separate  column  of  the 
assessment  book  the  respective  sums,  in  dollars  and  cents,  to  be  paid  as 
an  assessment  on  the  property  therein  enumerated.  When  collected, 
the  assessment  shall  be  paid  into  the  district  treasury,  and  shall  consti- 
tute a  special  fund,  to  be  called  the  "  Bond  Fund  of Irrigation  Dis- 
trict." In  case  of  the  neglect  or  refusal  of  the  Board  of  Directors  to 
cause  such  assessment  and  levy  to  be  made  as  in  this  Act  provided,  then 
the  assessment  of  property  made  by  the  County  Assessor  and  the  State 
Board  of  Equalization  shall  be  adopted,  and  shall  be  the  basis  of  assess- 
ments for  the  district,  and  the  Board  of  Supervisors  of  the  county  in 
wdiich  the  office  of  the  Board  of  Directors  is  situated  shall  cause  an 
assessment  roll  for  said  district  to  be  prepared,  and  shall  make  the  levy 
required  by  this  Act,  in  the  same  manner  and  with  like  eff'ect  as  if  the 
same  had  been  made  by  said  Board  of  Directors,  and  all  expenses  inci- 
dent thereto  shall  be  borne  by  such  district.  In  case  of  the  neglect  or 
refusal  of  the  Collector  or  Treasurer  of  the  district  to  perform  the  duties 
imposed  by  law,  then  the  Tax  Collector  and  Treasurer  of  the  county  in 
which  the  office  of  the  Board  of  Directors  is  situated  must,  respectively, 
perform  such  duties,  and  shall  be  accountable  therefor  upon  their  official 
bonds  as  in  other  cases.     {Amendment  approved  March  20,  1891.) 


—  14  — 

This  section  was  amended  so  as  to  correspond  Math  the  amendment  to  section  fifteen, 
and  before  this  amendment  read  as  follows: 

Sec.  22.  The  Board  of  Directors  shall  then  levy  an  assessment  sufficient  to  raise  the 
annual  interest  on  the  outstanding  bonds;  and  at  the  expiration  of  ten  years  after  the 
issuing  of  bonds  by  the  Board,  must  increase  said  assessment  for  the  ensuing  ten  years 
in  the  following  percentage  of  the  principal  of  the  whole  amount  of  bonds  then  outstand- 
ing, to  wit:  For  the  eleventh  year,  five  per  cent;  for  the  twelfth  year,  six  per  cent;  for 
,  the  thirteenth  year,  seven  per  cent ;  for  the  fourteenth  year,  eight  per  cent ;  for  the  fifteenth 
year,  nine  per  cent;  for  the  sixteenth  year,  ten  per  cent;  for  the  seventeenth  year,  eleven 
percent;  for  the  eighteenth  year,  thirteen  percent;  for  the  nineteenth  year,  fifteen  per 
cent ;  and  for  the  twentieth  year,  a  percentage  sufficient  to  pay  off  said  bonds.  The  Secre- 
tary of  the  Board  must  compute  and  enter  in  a  separate  column  of  the  assessment  book 
the  respective  sums,  in  dollars  and  cents,  to  be  paid  as  an  assessment  on  the  property 
therein  enumerated.     When  collected,  the  assessment  shall  be  paid  into  the  district 

treasury,  and  shall  constitute  a  special  fund,  to  be  called  the  "  Bond  Fund  of Irrigation 

District."  In  case  of  the  neglect  or  refusal  of  the  Board  of  Directors  to  cause  such  assess- 
ment and  levy  to  be  made,  as  m  this  Act  provided,  then  the  assessment  of  property  made 
by  the  County  Assessor  and  the  State  Board  of  Equalization  shall  be  adopted,  and  shall 
be  the  basis  of  assessments  for  the  district,  and  the  Board  of  Supervisors  of  the  county  in 
which  the  office  of  the  Board  of  Directors  is  situated  shall  cause  an  assessment  roll  for 
said  district  to  be  prepared,  and  shall  make  the  levy  required  by  this  Act  in  the  same 
manner  and  with  like  effect  as  if  the  same  had  been  made  by  said  Board  of  Directors, 
and  all  expenses  incident  thereto  shall  be  borne  by  such  district.  In  case  of  the  neglect 
or  refusal  of  the  Collector  or  Treasurer  of  the  district  to  perform  the  duties  imposed  by 
law,  then  the  Tax  Collector  and  Treasurer  of  the  county  in  which  the  office  of  the  Board 
of  Directors  is  situated  must,  respectively,  perform  such  duties,  and  shall  be  accountable, 
therefor  upon  their  official  bonds  as  in  other  cases. 

Sec.  23.  The  assessment  upon  real  property  is  a  lien  against  the 
property  assessed  from  and  after  the  first  Monday  in  March  for  any 
year,  [and  the  lien  for  the  bonds  of  any  issue  shall  be  a  preferred  lien 
to  that  for  any  subsequent  issue,]  and  such  lien  is  not  removed  until 
the  assessments  are  paid,  or  the  property  sold  for  the  payment  thereof. 
{Amendment  approved  March  20,  1891.) 

The  words  in  brackets  is  new  matter. 

Sec  24.  On  or  before  the  first  day  of  November,  the  Secretary  must 
deliver  the  assessment  book  to  the  Collector  of  the  district,  who  shall 
within  twenty  days  publish  a  notice,  in  a  newspaper  published  in  each 
county  in  which  any  portion  of  the  district  may  lie,  that  said  assess- 
ments are  due  and  payable,  and  will  become  delinquent  at  six  o'clock 
p.  M.  on  the  last  Monday  of  December  next  thereafter,  and  that  unless  paid 
prior  thereto,  five  per  cent  will  be  added  to  the  amount  thereof,  and  also 
the  time  and  place  at  which  payment  of  assessments  may  be  made, 
which  notice  shall  be  published  for  the  period  of  two  weeks.  The  Col- 
lector must  attend  at  the  time  and  place  specified  in  the  notice,  to  receive 
assessments,  which  must  be  paid  in  gold  and  silver  coin;  he  must  mark 
the  date  of  payment  of  any  assessment  in  the  assessment  book,  opposite 
the  name  of  the  person  paying,  and  give  a  receipt  to  such  person,  speci- 
fying the  amount  of  the  assessment  and  the  amount  paid,  with  a  de- 
scription of  the  property  assessed.  On  the  [last  Monday  in  December, 
at  six  o'clock  r.  m.,]  of  each  year,  all  unpaid  assessments  are  delinquent, 
and  thereafter  the  Collector  must  collect  thereon,  for  the  use  of  the  dis- 
trict, an  addition  of  five  per  cent.  {Amendment  approved  March  31, 
1891.) 

The  words  in  1)rackets  were  sulistituted  for  the  words  "thirty-first  day  of  December." 

Sec.  25.  On  or  before  the  first  day  of  February,  the  Collector  must 
publish  the  delinquent  list,  which  must  contain  the  names  of  the  persons 
and  a  description  of  the  property  delinquent,  and  the  amount  of  the 


—  15  — 

assessments  and  costs  due  opposite  each  name  and  description.  He 
must  append  to  and  publish  with  the  delinquent  list  a  notice,  that 
unless  the  assessments  delinquent,  together  with  costs  and  percentage, 
are  paid,  the  real  property  upon  which  such  assessments  are  a  lien  will 
be  sold  at  public  auction.  The  publication  must  be  made  once  a  week 
for  three  successive  weeks,  in  a  newspaper  published  in  the  county  in 
which  the  property  delinquent  is  situated;  provided,  that  if  any  property 
assessed  to  the  same  person  or  corporation  shall  lie  in  more  than  one 
county,  then  such  publication  may  be  made  in  any  county  in  which  any 
portion  of  such  property  may  lie.  The  publication  must  designate  the 
time  and  place  of  sale.  The  time  of  sale  must  not  be  less  than  twenty- 
one  nor  more  than  twenty-eight  days  from  the  first  publication,  and  the 
place  must  be  at  some  point  designated  by  the  Collector,  within  the  dis- 
trict.    (Amendment  approved  March  31,  1891.) 

Before  the  al)Ove  amendment,  where  any  district  lay  in  more  than  one  county,  it  was 
necessary  to  publish  the  entire  delinquent  list  in  each  county  in  which  any  portion  of 

the  district  laj'. 

Sec.  26.  The  Collector  must  collect,  in  addition  to  the  assessments 
due  on  the  delinquent  list  and  five  per  cent  added,  fifty  cents  on  each 
lot,  piece,  or  tract  of  land  separately  assessed,  one  half  of  which  must 
go  to  the  district  and  the  other  to  the  Collector  for  preparing  the  list. 
On  the  day  fixed  for  the  sale,  or  some  subsequent  day  to  which  he  may 
have  postponed  it,  of  which  he  must  give  notice,  the  Collector,  between 
the  hours  of  ten  a.  m.  and  three  o'clock  p.  m.,  must  commence  the  sale 
of  the  property  advertised,  commencing  at  the  head  of  the  list  and  con- 
tinuing alphabetically,  or  in  the  numerical  order  of  the  lots  or  blocks, 
until  completed.  He  may  postpone  the  day  of  commencing  the  sales,  or 
the  sale,  from  day  to  day,  but  the  sale  must  be  completed  within  three 
weeks  from  the  day  first  fixed;  {^provided,  that  if  any  sale  or  sales  shall 
be  stayed  by  injunction  the  time  of  the  continuance  of  the  injunction 
is  not  part  of  the  time  limited  for  making  such  sale  or  sales.] 
{Amendment  approved  March  31,  1891.) 

The  words  in  brackets  is  new  matter. 

Sec.  27.  The  owner  or  person  in  possession  of  any  real  estate  offered 
for  sale  for  assessments  due  thereon  ma}^  designate,  in  writing,  to  the 
Collector,  prior  to  the  sale,  what  portion  of  the  property  he  wishes  sold, 
if  less  than  the  whole;  but  if  the  owner  or  possessor  does  not,  then  the 
Collector  may  designate  it,  and  the  person  who  will  take  the  least  quan- 
tity of  the  land,  or  in  case  an  undivided  interest  is  assessed,  then  the 
smallest  portion  of  the  interest,  and  pay  the  assessments  and  costs  due, 
including  two  dollars  to  the  Collector  for  the  duplicate  certificate  of  sale, 
is  the  purchaser.  If  the  purchaser  does  not  pay  the  assessments  and 
costs  before  ten  o'clock  a.  m.  the  following  day,  the  property  on  the  next 
sale  day  must  be  resold  for  the  assessments  and  costs.  [But  in  case 
there  is  no  purchaser  in  good  faith  for  the  same  on  the  first  day  that 
the  property  is  offered  for  sale,  then,  when  the  property  is  offered  there- 
after for  sale,  and  there  is  no  purchaser  in  good  faith  for  the  same,  the 
whole  amount  of  the  property  assessed  shall  be  struck  off  to  the  irriga- 
tion district  within  which  such  lands  are  situated  as  the  purchaser,  and 
the  duplicate  certificate  delivered  to  the  Treasurer  of  the  district,  and 
filed  bv  him  in  his  office.     No  charge  shall  be  made  for  the  duplicate 


certificate  where  the  district  is  the  purchaser,  and,  in  such  case,  the  Col- 
lector shall  make  an  entry,  "Sold  to  the  district,"  and  he  shall  be 
credited  with  the  amount  thereof  in  his  settlement.  An  irrigation  dis- 
trict, as  a  purchaser  at  such  sale,  shall  be  entitled  to  the  same  rights  as 
a  private  purchaser,  and  the  title  so  acquired  by  the  district,  subject  to 
the  right  of  redemption  herein  provided,  may  be  conveyed  by  deed,  exe- 
cuted and  acknowledged  by  the  President  and  Secretary  of  said  Board; 
provided,  that  authority  to  so  convey  must  be  conferred  by  resolution  of 
the  Board;  entered  on  its  minutes,  fixing  the  price  at  which  such  sale 
may  be  made,  and  such  conveyance  shall  not  be  made  for  a  less  sum 
than  the  reasonable  market  value  of  such  property.]  After  receiving 
the  amount  of  assessments  and  costs,  the  Collector  must  make  out  in 
duplicate  a  certificate,  dated  on  the  day  of  sale,  stating  (when  known) 
the  name  of  the  person  assessed,  a  description  of  the  land  sold,  the 
amount  paid  therefor,  that  it  was  sold  for  assessments,  giving  the  amount 
and  year  of  the  assessment,  and  specifying  the  time  when  the  purchaser 
will  be  entitled  to  a  deed.  The  certificate  must  be  signed  by  the  Col- 
lector, and  one  copy  delivered  to  the  purchaser,  and  the  other  filed  in 
the  office  of  the  County  Recorder  of  the  county  in  which  the  land  is 
situated.     {Amendment  approved  February  16,  1889.) 

The  matter  in  brackets  was  added  by  the  amendment. 

Sec.  28.  The  Collector,  before  delivering  any  certificate,  must  in  a 
book  enter  a  description  of  the  land  sold,  corresponding  with  the  de- 
scription in  the  certificate,  the  date  of  the  sale,  purchasers'  names,  and 
amount  paid,  regularly  number  the  description  on  the  margin  of  the 
book,  and  put  a  corresponding  number  on  each  certificate.  Such  book 
must  be  open  to  public  inspection,  without  fee,  during  office  hours,  when 
not  in  actual  use.  On  filing  the  certificate  with  such  County  Recorder 
the  lien  of  the  assessments  vests  with  the  purchaser,  and  is  only  di- 
vested by  the  payment  to  him,  or  to  the  Collector  for  his  use,  of  the 
purchase  money  and  two  per  cent  per  month  from  the  day  of  sale  until 
redemption. 

Sec.  29.  A  redemption  of  the  property  sold  may  be  made  by  the 
owner,  or  any  party  in  interest,  within  twelve  months  from  the  date  of 
purchase.  Redemption  must  be  m^ade  in  gold  or  silver  coin,  as  provided 
for  the  collection  of  State  and  county  taxes,  and  when  made  to  the  Col- 
lector he  must  credit  the  amount  paid  to  the  person  named  in  the 
certificate,  and  pay  it,  on  demand,  to  the  person  or  his  assignees.  In 
each  report  the  Collector  makes  to  the  Board  of  Directors  he  must  name 
the  person  entitled  to  redemption  money,  and  the  amount  due  to  each. 
On  receiving  the  certificate  of  sale  the  County  Recorder  must  file  it  and 
make  an  entry  in  a  book  similar  to  that  required  of  the  Collector.  On 
the  presentation  of  the  receipt  of  the  person  named  in  the  certificate,  or  of 
the  Collector,  for  his  use,  of  the  total  amount  of  redemption  money,  the 
Recorder  must  mark  the  word  "  Redeemed,"  the  date,  and  by  whom 
redeemed,  on  the  certificate  and  on  the  margin  of  the  book  where  the 
entry  of  the  certificate  is  made.  If  the  property  is  not  redeemed  within 
twelve  months  from  the  sale,  the  Collector,  or  his  successor  in  office, 
must  make  to  the  purchaser,  or  his  assignee,  a  deed  of  the  property, 
reciting  in  the  deed  substantially  the  matters  contained  in  the  certificate, 
and  that  no  person  redeemed  the  property  during  the  time  allowed  by 


—  17  — 

law  for  its  redemption.  The  Collector  shall  receive  from  the  purchaser, 
for  the  use  of  the  district,  two  dollars  for  making  such  deed. 

Sec.  30.  The  matter  recited  in  the  certificate  of  sale  must  be  recited 
in  the  deed,  and  such  deed  duly  acknowledged  or  proved  is  prima  facie 
evidence  that: 

First — The  property  was  assessed  as  required  by  law. 

Second — The  property  was  equalized  as  required  by  law. 

Third — That  the  assessments  were  levied  in  accordance  with  law. 

Fourth — The  assessments  were  not  paid. 

Fifth — At  a  proper  time  and  place  the  property  was  sold  as  prescribed 
by  law,  and  by  the  proper  ofhcer. 

Sixth — The  property  was  not  redeemed. 

Seventh — The  person  who  executed  the  deed  was  the  proper  officer. 

Such  deed  duly  acknowledged  or  proved  is  (except  as  against  actual 
fraud)  conclusive  evidence  of  the  regularity  of  all  the  proceedings  from 
the  assessment  by  the  Assessor,  inclusive,  up  to  the  execution  of  the 
deed.  The  deed  conveys  to  the  grantee  the  absolute  title  to  the  lands 
described  therein  free  of  all  incumbrances,  except  when  the  land  is 
owned  by  the  United  States  or  this  State,  in  which  case  it  is  prima  facie 
evidence  of  the  right  of  possession. 

Sec.  31.  The  assessment  book  or  delinquent  list,  or  a  copy  thereof, 
certified  by  the  Collector,  showing  unpaid  assessments  against  any 
person  or  property,  is  prima  facie  evidence  of  the  assessment,  the 
property  assessed,  the  delinquency,  the  amount  of  assessments  due 
and  unpaid,  and  that  all  the  forms  of  the  law  in  relation  to  the  assess- 
ment and  levy  of  such  assessments  have  been  complied  with. 

Sec.  32.  When  land  is  sold  for  assessments  correctly  imposed,  as  the 
property  of  a  particular  person,  no  misnomer  of  the  owner  or  supposed 
owner,  or  other  mistake  relating  to  the  ownership  thereof,  affects  the 
sale  or  renders  it  void  or  voidable. 

Sec.  33.  On  the  first  Monday  in  each  month  the  Collector  must 
settle  with  the  Secretary  of  the  Board  for  all  moneys  collected  for 
assessments,  and  pay  the  same  over  to  the  Treasurer;  and  within  six 
days  thereafter  he  must  deliver  to  and  file  in  the  office  of  the  Secretary 
a  statement  under  oath,  showing: 

First — An  account  of  all  his  transactions  and  receipts  since  his  last 
settlement. 

Second — That  all  money  collected  by  him  as  Collector  has  been  paid. 

The  Collector  shall  also  file  in  the  office  of  the  Secretary,  on  said  first 
Monday  in  each  month,  the  receipt  of  the  Treasurer  for  the  money  so 
paid. 

Sec.  34.  Upon  the  presentation  of  the  coupons  due  to  the  Treasurer, 
he  shall  pay  the  same  from  said  Bond  Fund.  Whenever,  after  ten  years 
from  the  issuance  of  said  bonds,  said  fund  shall  amount  to  the  sum  of 
ten  thousand  dollars,  the  Board  of  Directors  may  direct  the  Treasurer 
to  pay  such  an  amount  of  said  bonds  not  due  as  the  money  in  said 
fund  will  redeem,  at  the  lowest  value  at  which  they  may  be  offered  for 
liquidation,  after  advertising  for  at  least  four  weeks  in  some  daily  news- 
paper in  each  of  the  cities  hereinbefore  named,  and  in  any  other  news- 
paper which  said  Board  may  deem  advisable,  for  sealed  proposals  for 
the  redemption  of  said  bonds.  Said  proposals  shall  be  opened  by  the 
Board  in  open  meeting,  at  a  time  to  be  named  in  the  notice,  and  the 


—  18  — 

lowest  bid  for  said  bonds  must  be  accepted;  provided,  that  no  bond  shall 
be  redeemed  at  a  rate  above  par.  In  case  the  bids  are  equal,  the  lowest 
numbered  bond  shall  have  the  preference.  In  case  none  of  the  hold- 
ers of  said  bonds  shall  desire  to  have  the  same  redeemed,  as  herein 
provided  for,  said  money  shall  be  invested  by  the  Treasurer,  under  the 
direction  of  the  Board,  in  United  States  gold-bearing  bonds,  or  the  bonds 
of  the  State,  which  shall  be  kept  in  said  "  Bond  Fund,"  and  may  be 
used  to  redeem  said  district  bonds  whenever  the  holders  thereof  may 
desire. 

Sec.  35.  After  adopting  a  plan  for  said  canal  or  canals,  storage  reser- 
voirs, and  works,  the  Board  of  Directors  shall  give  notice,  jjy  publication 
thereof  not  less  than  twenty  days  in  one  newspaper  published  in  each 
of  the  counties  composing  the  district  {provided,  a  newspaper  is  pub- 
lished therein),  and  in  such  other  newspapers  as  they  may  deem  advis- 
able, calling  for  bids  for  the  construction  of  such  w^ork,  or  of  any  portion 
thereof;  if  less  than  the  whole  work  is  advertised,  then  the  portion  so 
advertised  must  be  particularly  described  in  such  notice.  Said  notice 
shall  set  forth  that  plans  and  specifications  can  be  seen  at  the  office  of 
the  Board,  and  that  the  Board  will  receive  sealed  proposals  therefor,' 
and  that  the  contract  will  be  let  to  the  lowest  responsible  bidder,  stating 
the  time  and  place  for  opening  said  proposals,  which,  at  the  time  and 
place  appointed,  shall  be  opened  in  public;  and  as  soon  as  convenient 
thereafter  the  Board  shall  let  said  work,  either  in  portions  or  as  a  whole, 
to  the  lowest  responsible  bidder;  or  they  may  reject  any  or  all  bids  and 
readvertise  for  proposals,  or  may  proceed  to  construct  the  work  under 
their  own  superintendence.  Contracts  for  the  purchase  of  material  shall 
be  awarded  to  the  lowest  responsible  bidder.  Any  person  or  persons  to 
whom  a  contract  may  be  awarded  shall  enter  into  a  bond,  with  good  and 
sufficient  sureties,  to  be  approved  by  Ihe  Board,  payable  to  said  district 
for  its  use,  for  twenty-five  per  cent  of  the  amount  of  the  contract  price, 
conditioned  for  the  faithful  performance  of  said  contract.  The  work 
shall  be  done  under  the  direction  and  to  the  satisfaction  of  the  engineer, 
and  be  approved  by  the  Board.     {Amendment  approved  March  20,  1891.) 

Before  tlie  above  amendment,  anv  work  done  under  the  superintendence  of  the  Board 
of  Directors,  and  not  by  contract  awarded  under  competitive  bids,  was  required  to  be 
done  whollv  by  the  residents  of  the  district;  and  contractors  were  required  to  give  bond 
in  double  the  amount  of  the  contract  price. 

Sec.  36.  No  claim  shall  be  paid  by  the  Treasurer  until  allowed  by 
the  Board,  and  only  upon  a  warrant  signed  by  the  President,  and 
countersigned  by  the  Secretary;  provided,  that  the  Board  may  draw, 
from  time  to  time,  from  the  Construction  Fund,  and  deposit  in  the 
County  Treasury  of  the  county  where  the  office  of  the  Board  is  situated, 
any  sum  in  excess  of  the  sum  of  twenty-five  thousand  dollars.  The 
County  Treasurer  of  said  county  is  hereby  authorized  and  required  to 
receive  and  receipt  for  the  same,  and  place  the  same  to  the  credit  of 
said  district,  and  he  shall  be  responsible  upon  his  official  bond  for  the 
safe-keeping  and  disbursement  of  the  same,  as  in  this  Act  provided. 
,  He  shall  pay  out  the  same,  or  any  portion  thereof,  to  the  Treasurer  of 
the  district  only,  and  only  upon  the  order  of  the  Board,  signed  by  the 
President,  and  attested  by  the  Secretary.  The  said  County  Treasurer 
shall  report,  in  writing,  on  the  second  Monday  in  each  month,  the 
amount  of  money  in  the  County  Treasury,  the  amount  of  receipts  for 


—  19  — 

the  month  preceding,  and  the  amonnt  or  amounts  paid  out;  said  report 
shall  ])e  verified  and  filed  with  the  Secretary  of  the  Board.  The  district 
Treasurer  shall  also  report  to  the  Board,  in  writing,  on  the  first  Monday 
in  each  month,  the  amount  of  money  in  the  district  treasury,  the 
amount  of  receipts  for  the  month  preceding,  and  the  amount  and  items 
of  expenditures,  and  said  report  shall  he  verified  and  filed  with  the 
Secretary  of  the  Board. 

Sec.  37.  The  cost  and  expense  of  purchasing  and  acquiring  property 
and  constructing  the  works  and  improvements  herein  provided  for,  shall 
be  wholly  paid  out  of  the  Construction  Fund.  For  the  purpose  of  de- 
fraying the  expenses  of  the  organization  of  the  district,  and  of  the 
care,  operation,  management,  repair,  and  improvement  of  such  portions 
of  said  canal  and  works  as  are  completed  and  in  use,  including  salaries 
of  officers  and  employes,  the  Board  may  either  fix  rates  of  tolls  and 
charges,  and  collect  the  same  from  all  persons  using  said  canal  for  irri- 
gation and  other  purposes,  or  they  may  provide  for  the  payment  of  said 
expenditures  by  a  levy  of  assessments  therefor,  or  by  both  said  tolls 
and  assessments;  if  by  the  latter  method,  such  levy  shall  be  made  on 
the  completion  and  equalization  of  the  assessment  roll,  and  the  Board 
shall  have  the  same  powers  and  functions  for  the  purposes  of  said  levy 
as  are  now  possessed  by  Boards  of  Supervisors  in  this  State.  The 
procedure  for  the  collection  of  assessments  by  such  levy  shall  in  all 
respects  conform  to  the  provisions  of  this  Act  relating  to  the  payment  of 
principal  and  interest  of  bonds  herein  provided  for. 

Sec.  38.  The  Board  of  Directors  shall  have  power  to  construct  the 
said  works  across  any  stream  of  water,  watercourse,  street,  avenue,  high- 
way, railway,  canal,  ditch,  or  flume  which  the  route  of  said  canal  or 
canals  may  intersect  or  cross,  in  such  manner  as  to  afford  security  for 
life  and  property;  but  said  Board  shall  restore  the  same,  when  so  crossed 
or  intersected,  to  its  former  state  as  near  as  may  be,  or  in  a  sufficient 
manner  not  to  have  impaired  unnecessarily  its  usefulness;  and  every 
company  whose  railroad  shall  be  intersected  or  crossed  by  said  works 
shall  unite  with  said  Board  in  forming  said  intersections  and  crossings, 
and  grant  the  privileges  aforesaid;  and  if  such  railroad  company  and 
said  Board,  or  the  owners  and  controllers  of  the  said  property,  thing,  or 
franchise  so  to  be  crossed,  cannot  agree  upon  the  amount  to  be  paid 
therefor,  or  the  points  or  the  manner  of  said  crossings  or  intersections, 
the  same  shall  be  ascertained  and  determined  in  all  respects  as  is  herein 
provided  in  respect  to  the  taking  of  land.  The  right  of  way  is  hereby 
given,  dedicated,  and  set  apart,  to  locate,  construct,  and  maintain  said 
works  over  and  through  any  of  the  lands  which  are  now  or  may  be  the 
l)roperty  of  this  State;  and  also  there  is  given,  dedicated,  and  set  apart, 
for  the  uses  and  purposes  aforesaid,  all  waters  and  water  rights  belong- 
ing to  this  State  within  the  district. 

Sec.  39.  The  Board  of  Directors  shall  each  receive  four  dollars  per  day, 
and  mileage  at  the  rate  of  twenty  cents  per  mile,  in  attending  meetings, 
and  actual  and  necessary  expenses  paid  while  engaged  in  official  busi- 
ness under  the  order  of  the  Board.  The  Board  shall  fix  the  compen- 
sation to  be  paid  to  the  other  officers  named  in  the  Act,  to  be  paid  out 
of  the  Treasury  of  the  district;  provided,  that  said  Board  shall,  upon 
the  petition  of  at  least  fifty,  or  a  majority  of  the  freeholders  within  such 
district,  therefor,  submit  to  the  electors  at  any  general  election  a  schedule 
of  salaries  and  fees  to  be  paid  hereunder.     Such  petition  must  be  pre- 


—  20  — 

seated  to  the  Board  twenty  days  prior  to  a  general  election,  and  the 
result  of  such  election  shall  be  determined  and  declared  in  all  respects 
as  other  elections  are  determined  and  declared  under  this  Act. 

Sec.  40.  No  Director  or  any  other  officer  named  in  this  Act  shall  in 
any  manner  be  interested,  directly  or  indirectly,  in  any  contract  awarded 
or  to  be  awarded  by  the  Board,  or  in  the  profits  to  be  derived  there- 
from; and  for  any  violation  of  this  provision,  such  officer  shall  be  deemed 
guilty  of  a  misdemeanor,  and  such  conviction  shall  work  a  forfeiture  of 
his  office,  and  he  shall  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars,  or  by  imprisonment  in  the  county  jail  not  exceeding  six  months, 
or  by  both  such  fine  and  imprisonment. 

Sec.  41.  The  Board  of  Directors  may,  at  any  time,  when  in  their 
judgment  it  may  be  advisable,  call  a  special  election  and  submit  to  the 
qualified  electors  of  the  district  the  question,  whether  or  not  a  special 
assessment  shall  be  levied  for  the  purpose  of  raising  money  to  be 
applied  to  any  of  the  purposes  provided  in  this  Act.  Such  election 
must  be  called  upon  the  notice  prescribed,  and  the  same  shall  be  held 
and  the  result  thereof  determined  and  declared  in  all  respects  in  con- 
formity with  the  provisions  of  section  fifteen  of  this  Act.  The  notice" 
must  specify  the  amount  of  money  proposed  to  be  raised  and  the  pur- 
pose for  which  it  is  intended  to  be  used.  At  such  elections  the  ballots 
shall  contain  the  words  "Assessment — Yes,"  or  "Assessment — No."  If 
two  thirds  or  more  of  the  votes  cast  are  "Assessment — Yes,"  the  Board 
shall,  at  the  time  of  the  annual  levy  hereunder,  levy  an  assessment 
sufficient  to  raise  the  amount  voted.  The  rate  of  assessment  shall  be 
ascertained  by  deducting  fifteen  per  cent  for  anticipated  delinquencies 
from  the  aggregate  assessed  value  of  the  property  in  the  district  as  it 
appears  on  the  assessment  roll  for  the  current  year,  and  then  dividing 
the  sum  voted  by  the  remainder  of  su'ch  aggregate  assessed  value.  The 
assessments  so  levied  shall  be  computed  and  entered  on  the  assessment 
roll  by  the  Secretary  of  the  Board  and  collected  at  the  same  time  and 
in  the  same  manner  as  other  assessments  provided  for  herein;  and  when 
collected  shall  be  paid  into  the  district  treasury  for  the  purposes  speci- 
fied in  the  notice  of  such  special  election. 

Sec.  42.  The  Board  of  Directors,  or  other  officers  of  the  district, 
shall  have  no  power  to  incur  any  debt  or  liability  whatever,  either  by 
issuing  bonds  or  otherwise,  in  excess  of  the  express  provisions  of  this 
Act;  and  any  debt  or  liability  incurred  in  excess  of  such  express  pro- 
visions shall  be  and  remain  absolutely  void,  [except  that  for  the  pur- 
poses of  organization,  or  for  any  of  the  purposes  of  this  Act,  the  Board 
of  Directors  may,  before  the  collection  of  the  first  assessment,  incur 
an  indebtedness  not  exceeding  in  the  aggregate  the  sum  of  two  thousand 
dollars,  and  may  cause  warrants  of  the  district  to  issue  therefor,  bearing 
interest  at  seven  per  cent  per  annum.]  {Amendment  approved  March 
W,  1891.) 

The  words  in  brackets  is  new  matter. 

Sec.  43.  In  case  the  volume  of  water  in  any  stream  or  river  shall  not 
be  sufficient  to  supply  the  continual  wants  of  the  entire  country  through 
which  it  passes,  and  susceptible  of  irrigation  therefrom,  then  it  shall  be 
the  duty  of  the  Water  Commissioners,  constituted  as  hereinafter  pro- 
vided, to  apportion,  in  a  just  and  equitable  proportion,  a  certain  amount 


—  21  — 

of  said  water  upon  certain  or  alternate  weekly  days  to  different  localities, 
as  they  may,  in  their  judgment,  think  best  for  the  interest  of  all  parties 
concerned,  and  with  due  regard  to  the  legal  and  equitable  rights  of  all. 
Said  Water  Commissioners  shall  consist  of  the  Chairman  of  the  Board 
of  Directors  of  each  of  the  districts  affected. 

Sec.  44.  It  shall  be  the  duty  of  the  Board  of  Directors  to  keep  the 
water  flowing  through  the  ditches  under  their  control  to  the  full  capacity 
of  such  ditches  in  times  of  high  water. 

Sec.  45.  Navigation  shall  never  in  anywise  be  impaired  by  the  opera- 
tion of  this  Act,  nor  shall  any  vested  interest  in  or  to  any  mining  water 
rights  or  ditches,  or  in  or  to  any  water  or  water  rights,  or  reservoirs  or 
dams  now  used  by  the  owners  or  possessors  thereof  in  connection  with 
any  mining  industry,  or  by  persons  purchasing  or  renting  the  use 
thereof,  or  in  or  to  any  other  property  now  used,  directly  or  indirectly, 
in  carrying  on  or  promoting  the  mining  industry,  ever  be  affected  by  or 
taken  under  its  provisions,  save  and  except  that  rights  of  way  may  be 
acquired  over  the  same. 

Sec.  46.  None  of  the  provisions  of  this  Act  shall  be  construed  as 
repealing  or  in  anywise  modifying  the  provisions  of  any  other  Act 
relating  to  the  subject  of  irrigation  or  Water  Commissioners.  Nothing 
herein  contained  shall  be  deemed  to  authorize  any  person  or  persons  to 
divert  the  waters  of  any  river,  creek,  stream,  canal,  or  ditch  from  its 
channel,  to  the  detriment  of  any  person  or  persons  having  any  interest 
in  such  river,  creek,  stream,  canal,  or  ditch,  or  the  waters  therein,  unless 
previous  compensation  be  ascertained  and  paid  therefor,  under  the  laws 
of  this  State  authorizing  the  taking  of  private  property  for  public  uses. 


—  22  — 


SUPPLEMENTAL  ACTS. 


INCLUSION  ACT. 

[Approved  February  16,  1889.J 

Section  1.  The  boundaries  of  any  irrigation  district  now  or  hereafter 
organized  under  the  provisions  of  an  Act  entitled  "An  Act  to  provide  for 
the  organization  and  government  of  irrigation  districts,  and  to  provide 
for  the  acquisition  of  water  and  other  property,  and  for  the  distribution 
of  water  tliereby  for  irrigation  purposes,"  approved  March  seventh,  eiglit- 
een  hundred  and  eighty-seven,  may  be  changed  in  the  manner  herein 
prescribed;  but  such  change  of  the  boundaries  of  the  district  shall  not 
impair  or  affect  its  organization,  or  its  rights  in  or  to  property,  or  any 
of  its  rights  or  privileges  of  whatsoever  kind  or  nature;  nor  shall  it  affect, 
impair,  or  discharge  any  contract,  obligation,  lien,  or  charge  for  or  upon 
which  it  was  or  might  become  liable  or  chargeable,  had  such  change  of 
its  boundaries  not  been  made. 

■  Sec.  2.  The  holder  or  holders  of  title,  or  evidence  of  title,  represent- 
ing one  half  or  more  of  any  body  of  lands  adjacent  to  the  boundary  of 
an  irrigation  district,  which  are  contiguous,  and  which,  taken  together, 
constitute  one  tract  of  land,  may  file  with  the  Board  of  Directors  of  said 
district  a  petition,  in  writing,  praying  that  the  boundaries  of  said  district 
may  be  so  changed  as  to  include  therein  said  lands.  The  petition  shall 
describe  the  boundaries  of  said  parcel  or  tract  of  land,  and  shall  also 
describe  the  boundaries  of  the  several  parcels  owned  by  the  petitioners, 
if  the  petitioners  be  the  owners,  respectively,  of  distinct  parcels,  but  such 
descriptions  need  not  be  more  particular  than  they  are  required  to  be 
when  such  lands  are  entered  by  the  County  Assessor  in  the  assessment 
book.  Such  petition  must  contain  the  assent  of  the  petitioners  to  the 
inclusion  within  said  district  of  the  parcels  or  tracts  of  land  described 
in  the  petition,  and  of  which  said  petition  alleges  they  are,  respectively, 
the  owners;  and  it  must  be  acknowledged  in  the  same  manner  that  con- 
veyances of  land  are  required  to  be  acknowledged. 

Sec.  3.  The  Secretary  of  the  Board  of  Directors  shall  cause  a  notice 
of  the  filing  of  such  petition  to  be  given  and  published  in  the  same  man- 
ner and  for  the  same  time  that  notices  of  special  elections  for  the  issue 
of  bonds  are  required  by  said  Act  to  be  published.  The  notice  shall 
state  the  filing  of  such  petition  and  the  names  of  the  petitioners,  a 
description  of  the  lands  mentioned  in  said  petition,  and  the  prayer  of 
said  petition;  and  it  shall  notify  all  persons  interested  in,  or  that  may 
be  affected  by  such  change  of  the  boundaries  of  the  district,  to  appear 
at  the  office  of  said  Board,  at  a  time  named  in  said  notice,  and  show 
cause  in  writing,  if  any  they  have,  why  the  change  in  the  boundaries 
of  said  district,  as  proposed  in  said  petition,  should  not  be  made.  The 
time  to  be  specified  in  the  notice  at  which  they  shall  be  required  to  show 
cause  shall  be  the  regular  meeting  of  the  Board  next  after  the  expiration 
of  the  time  for  the  publication  of  the  notice.     The  petitioners  shall 


—  23  — 

advance  to  the  Secretary  sufficient  money  to  pay  the  estimated  costs  of 
all  proceedings  under  this  Act. 

Sec.  4.  The  Board  of  Directors,  at  the  time  and  place  mentioned  in 
the  said  notice,  or  at  such  other  time  or  times  to  -which  the  hearing  of 
said  petition  may  be  adjourned,  shall  proceed  to  hear  the  petition,  and 
all  the  objections  thereto,  presented  in  writing  by  any  person  showing 
cause  as  aforesaid  why  said  proposed  change  of  the  boundaries  of  the 
district  should  not  be  made.  The  failure  by  any  person  interested  in 
said  district,  or  in  the  matter  of  the  proposed  change  of  its  boundaries, 
to  show  cause,  in  writing,  as  aforesaid,  shall  be  deemed  and  taken  as  an 
assent  on  his  part  to  a  change  of  the  boundaries  of  the  district  as  prayed 
for  in  said  petition,  or  to  such  a  change  thereof  as  will  include  a  part  of 
said  lands.  And  the  filing  of  such  petition  with  said  Board,  as  afore- 
said, shall  be  deemed  and  taken  as  an  assent  on  the  part  of  each  and  all 
of  such  petitioners  to  such  a  change  of  said  boundaries  that  they  may 
include  the  whole  or  any  portion  of  the  lands  described  in  said  petition. 

Sec.  5.  The  Board  of  Directors  to  whom  such  petition  is  presented, 
may  require,  as  a  condition  precedent  to  the  granting  of  the  same,  that 
the  petitioners  shall  severally  pay  to  such  district  such  respective  sums, 
as  nearly  as  the  same  can  be  estimated  (the  several  amounts  to  be 
determined  by  the  Board),  as  said  petitioners  or  their  grantors  would 
have  been  required  to  pay  to  such  district  as  assessments  had  such  lands 
been  included  in  such  district  at  the  time  the  same  was  originally  formed. 

Sec.  6.  The  Board  of  Directors,  if  they  deem  it  not  for  the  best  inter- 
ests of  the  district  that  a  change  of  its  boundaries  be  so  made  as  to 
include  therein  the  lands  mentioned  in  the  petition,  shall  order  that 
the  petition  be  rejected.  But  if  they  deem  it  for  the  best  interests  of 
the  district  that  the  boundaries  of  said  district  be  changed,  and  if  no 
person  interested  in  said  district  or  the  proposed  change  of  its  bound- 
aries shows  cause,  in  writing,  why  the  proposed  change  should  not  be 
made,  or  if,  having  shown  cause,  withdraws  the  same,  the  Board  may 
order  that  the  boundaries  of  the  district  be  so  changed  as  to  include 
therein  the  lands  mentioned  in  said  petition  or  some  part  thereof.  The 
order  shall  describe  the  boundaries  as  changed,  and  shall  also  describe 
the  entire  boundaries  of  the  district  as  they  will  be  after  the  change 
thereof  as  aforesaid  is  made;  and  for  that  purpose  the  Board  may  cause 
a  survey  to  be  made  of  such  portions  of  such  boundary  as  is  deemed 
necessary. 

Sec.  7.  If  any  person  interested  in  said  district,  or  the  proposed 
change  of  its  boundaries,  shall  show  cause  as  aforesaid  why  such  bound- 
aries should  not  be  changed,  and  shall  not  withdraw  the  same,  and  if 
the  Board  of  Directors  deem  it  for  the  best  interests  of  the  district  that 
the  boundaries  thereof  be  so  changed  as  to  include  therein  the  lands 
mentioned  in  the  petition,  or  some  part  thereof,  the  Board  shall  adopt 
a  resolution  to  that  effect.  The  resolution  shall  describe  the  exterior 
boundaries  of  the  lands  which  the  Board  are  of  the  opinion  should  be 
included  within  the  boundaries  of  the  district  when  changed. 

Sec.  8.  Upon  the  adoption  of  the  resolution  mentioned  in  the  last 
preceding  section,  the  Board  shall  order  that  an  election  be  held  within 
said  district,  to  determine  whether  the  boundaries  of  the  district  shall 
be  changed  as  mentioned  in  said  resolution;  and  shall  fix  the  time  at 
which  such  election  shall  be  held,  and  cause  notice  thereof  to  be  given 
and  published.     Such  notice  shall  be  given  and  published,  and  such 


—  24  — 

election  shall  be  held  and  conducted,  the  returns  thereof  shall  be  made 
and  canvassed,  and  the  result  of  the  election  ascertained  and  declared,  ^ 
and  all  things  pertaining  thereto  conducted  in  the  manner  prescribed 
by  said  Act  in  case  of  a  special  election  to  determine  whether  bonds  of 
an  irrigation  district  shall  be  issued.  The  ballots  cast  at  said  election 
shall  contain  the  words  "  For  change  of  boundary,"  or  "  Against  change 
of  boundary,"  or  words  equivalent  thereto.  The  notice  of  election  shall 
describe  the  proposed  change  of  the  boundaries  in  such  manner  and 
terms  that  it  can  readily  be  traced. 

Sec.  9.  If  at  such  election  a  majority  of  all  the  votes  cast  at  said 
election  shall  be  against  such  change  of  the  boundaries  of  the  district, 
the  Board  shall  order  that  said  petition  be  denied,  and  shall  proceed  no 
further  in  that  matter.  But  if  a  majority  of  such  votes  be  in  favor  of 
such  change  of  the  boundaries  of  the  district,  the  Board  shall  thereupon 
order  that  the  boundaries  be  changed  in  accordance  with  said  resolution 
adopted  by  the  Board.  The  said  order  shall  describe  the  entire  bound- 
aries of  said  district,  and  for  that  purpose  the  Board  may  cause  a  survey 
of  such  portions  thereof  to  be  made  as  the  Board  may  deem  necessary. 

Sec.  10.  Upon  a  change  of  the  boundaries  of  a  district  being  made,  a 
copy  of  the  order  of  the  Board  of  Directors  ordering  such  change,  certi- 
fied by  the  President  and  Secretary  of  the  Board,  shall  be  filed  for  record 
in  the  Recorder's  office  of  each  county  within  which  are  situated  any  of 
the  lands  of  the  district,  and  thereupon  the  district  shall  be  and  remain 
an  irrigation  district,  as  fully,  and  to  every  intent  and  purpose,  as  if  the 
lands  which  are  included  in  the  district  by  the  change  of  the  boundaries, 
as  aforesaid,  had  been  included  therein  at  the  original  organization  of  the 
district. 

Sec.  11.  Upon  the  filing  of  the  copies  of  the  order,  as  in  the  last  pre- 
ceding section  mentioned,  the  Secretary  shall  record  in  the  minutes  of 
the  Board  the  petition  aforesaid;  and  the  said  minutes,  or  a  certified 
copy  thereof,  shall  be  admissible  in  evidence,  with  the  same  effect  as  the 
petition. 

Sec.  12.  A  guardian,  an  executor,  or  an  administrator  of  an  estate, 
who  is  appointed  as  such  under  the  laws  of  this  State,  and  who,  as 
such  guardian,  executor,  or  administrator,  is  entitled  to  the  possession 
of  the  lands  belonging  to  the  estate  which  he  represents,  may,  on  behalf 
of  his  ward  or  the  estate  which  he  represents,  upon  being  thereunto 
authorized  by  the  proper  Court,  sign  and  acknowledge  the  petition  in 
this  Act  mentioned,  and  may  show  cause,  as  in  this  Act  mentioned, 
why  the  boundaries  of  the  district  should  not  be  changed. 

Sec.  13.  In  case  of  the  inclusion  of  any  land  within  any  district  by 
proceedings  under  this  Act,  the  Board  of  Directors  must,  at  least  thirty 
days  prior  to  the  next  succeeding  general  election,  make  an  order  re- 
dividing  such  district  into  five  divisions,  as  nearly  equal  in  size  as  may 
be  practicable,  which  shall  be  numbered  first,  second,  third,  fourth, 
and  fifth,  and  one  Director  shall  thereafter  be  elected  by  each  division. 
For  the  purposes  of  elections  the  Board  of  Directors  must  establish  a 
convenient  number  of  election  precincts  in  said  districts,  and  define  the 
boundaries  thereof,  which  said  precincts  may  be  changed  from  time  to 
time,  as  the  Board  may  deem  necessary. 


9R 


EXCLUSION  ACT. 

[Approved  February  16,  1889.1 

Section  1.  The  boundaries  of  any  irrigation  district  now  or  hereafter 
organized  under  the  provisions  of  an  Act  entitled  "An  Act  to  provide 
for  the  organization  and  government  of  irrigation  districts,  and  to 
provide  for  the  acquisition  of  water  and  other  property,  and  for  the 
distribution  of  water  thereby  for  irrigation  purposes,"  approved  March 
seventh,  one  thousand  eight  hundred  and  eighty-seven,  may  be  changed, 
and  tracts  of  land  which  were  included  within  the  boundaries  of  such 
district  at  or  after  its  organization  under  the  provisions  of  said  Act  may 
be  excluded  therefrom,  in  the  manner  herein  prescribed;  but  neither 
such  change  of  the  boundaries  of  the  district,  nor  such  exclusion  of 
lands  from  the  district,  shall  impair  or  affect  its  organization,  or  its 
right  in  or  to  property,  or  any  of  its  rights  or  privileges,  of  whatever 
kind  or  nature;  nor  shall  it  affect,  impair,  or  discharge  any  contract, 
obligation,  lien,  or  charge  for  or  upon  which  it  was  or  might  become 
liable  or  chargeable  had  such  change  of  its  boundaries  not  been  made  or 
had  not  any  land  been  excluded  from  the  district. 

Sec.  2.  The  owner  or  owners  in  fee  of  one  or  more  tracts  of  land 
which  constitute  a  portion  of  an  irrigation  district,  may  file  with  the 
Board  of  Directors  of  the  district  a  petition,  praying  that  such  tracts, 
and  any  other  tracts  contiguous  thereto,  may  be  excluded  and  taken 
from  said  district.  The  petition  shall  describe  the  boundaries  of  the 
land  which  the  petitioners  desire  to  have  excluded  from  the  district, 
and  also  the  lands  of  each  of  such  petitioners,  which  are  included  within 
such  boundaries;  but  the  description  of  such  lands  need  not  be  more 
particular  or  certain  than  is  required  when  the  lands  are  entered  in 
the  assessment  book  by  the  County  Assessor.  Such  petition  must  be 
acknowledged  in  the  same  manner  and  form  as  is  required  in  case  of  a 
conveyance  of  land,  and  the  acknowledgment  shall  have  the  same  force 
and  effect  as  evidence  as  the  acknowledgment  of  such  conveyance. 

Sec.  3.  The  Secretary  of  the  Board  of  Directors  shall  cause  a  notice 
of  the  filing  of  such  petition  to  be  published  for  at  least  two  weeks  in 
some  newspaper  published  in  the  county  where  the  office  of  the  Board 
of  Directors  is  situated,  and  if  any  portion  of  such  territory  to  be 
excluded  lie  within  another  county  or  counties,  then  said  notice  shall 
be  so  published  in  a  newspaper  published  within  each  of  said  counties; 
or  if  no  newspaper  be  published  therein,  then  by  posting  such  notice  for 
the  same  time  in  at  least  three  public  places  in  said  district,  and,  in 
case  of  the  posting  of  said  notices,  one  of  said  notices  must  be  so  posted 
on  the  lands  proposed  to  be  excluded.  The  notice  shall  state  the  filing 
of  such  petition;  the  names  of  the  petitioners;  a  description  of  the  lands 
mentioned  in  said  petition,  and  the  prayer  of  said  petition;  and  it  shall 
notify  all  persons  interested  in,  or  that  may  be  affected  by  such  change 
of  the  boundaries  of  the  district,  to  appear  at  the  office  of  said  Board  at 
a  time  named  in  said  notice,  and  show  cause,  in  writing,  if  any  they 
have,  why  the  change  of  the  boundaries  of  said  district,  as  proposed  in 
said  petition,  should  not  be  made.  The  time  to  be  specified  in  the 
notice  at  which  they  shall  be  required  to  show  cause  shall  be  the  regular 
meeting  of  the  Board  next  after  the  expiration  of  the  time  for  the  pub- 
lication of  the  notice. 


—   26    — 

Sec.  4.  The  Board  of  Directors,  at  the  time  and  place  mentioned  in 
the  notice,  or  at  the  time  or  times  to  which  the  hearing  of  said  petition 
may  be  adjourned,  shall  proceed  to  hear  the  petition  and  all  objections 
thereto  presented  in  writing  by  any  person  showing  cause  as  aforesaid 
why  the  prayer  of  said  petition  should  not  be  granted.  The  failure  of 
any  person  interested  in  said  district  to  show  cause,  in  writing,  why  the 
tract  or  tracts  of  land  mentioned  in  said  petition  should  not  be  excluded 
from  said  district,  shall  be  deemed  and  taken  as  an  assent  by  him  to  the 
exclusion  of  such  tract  or  tracts  of  land,  or  any  part  thereof,  from  said 
district;  and  the  filing  of  such  petition  with  such  Board,  as  aforesaid, 
shall  be  deemed  and  taken  as  an  assent  by  each  and  all  of  such  peti- 
tioners to  the  exclusion  from  such  district  of  the  lands  mentioned  in  the 
petition,  or  any  part  thereof. 

Sec.  5.  The  Board  of  Directors,  if  they  deem  it  not  for  the  best  inter- 
ests of  the  district  that  the  lands  mentioned  in  the  petition,  or  some  por- 
tion thereof,  should  be  excluded  from  said  district,  shall  order  that  said 
petition  be  denied;  but  if  they  deem  it  for  the  best  interests  of  the  dis- 
trict that  the  lands  mentioned  in  the  petition,  or  some  portion  thereof, 
be  excluded  from  the  district,  and  if  no  person  interested  in  the  district 
show  cause,  in  writing,  why  the  said  lands,  or  some  portion  thereof, 
should  not  be  excluded  from  the  district,  or  if,  having  shown  cause,  with- 
draws the  same,  and  also,  if  there  be  no  outstanding  bonds  of  the  dis- 
trict, then  the  Board  may  order  that  the  lands  mentioned  in  the  petition, 
or  some  defined  portion  thereof,  be  excluded  from  the  district. 

Sec.  6.  If  there  be  outstanding  bonds  of  the  district,  then  the  Board 
may  adopt  a  resolution  to  the  effect  that  the  Board  deems  it  to  the  best 
interest  of  the  district  that  the  lands  mentioned  in  the  petition,  or  some 
portion  thereof,  should  be  excluded  from  the  district.  The  resolution 
shall  describe  such  lands  so  that  the  boundaries  thereof  can  readily  be 
traced.  The  holders  of  such  outstanding  bonds  may  give  their  assent 
in  writing  to  the  efiect  that  they  severally  consent  that  the  Board  may 
make  an  order  by  which  the  lands  mentioned  in  the  resolution  may  be 
excluded  from  the  district.  The  assent  must  be  acknowledged  by  the 
several  holders  of  such  bonds  in  the  same  manner  and  form  as  is 
required  in  case  of  a  conveyance  of  land,  and  the  acknowledgment 
shall  have  the  same  force  and  efiect  as  evidence  as  the  acknowledgment 
of  such  conveyance.  The  assent  shall  be  filed  with  the  Board,  and 
must  be  recorded  in  the  minutes  of  the  Board;  and  said  minutes,  or  a 
certified  copy  thereof,  shall  be  admissible  in  evidence  with  the  same 
efiect  as  the  said  assent;  but  if  such  assent  be  not  filed,  the  Board  shall 
deny  and  dismiss  said  petition. 

Sec.  7.  If  the  assent  aforesaid  of  the  holders  of  said  bonds  be  filed 
and  entered  of  record  as  aforesaid,  and  if  there  be  objections  presented 
by  any  person  showing  cause  as  aforesaid,  which  have  not  been  with- 
drawn, then  the  Board  may  order  an  election  to  be  held  in  said  district, 
to  determine  whether  an  order  shall  be  made  excluding  said  land  from 
the  district  as  mentioned  in  said  resolution.  The  notice  of  such  election 
shall  describe  the  boundary  of  all  lands  which  it  is  proposed  to  exclude, 
and  such  notice  shall  be  published  for  at  least  two  weeks  prior  to  such 
election  in  a  newspaper  published  within  the  county  where  the  office  of 
the  Board  of  Directors  is  situated;  and  if  any  portion  of  such  territory 
to  be  excluded  lie  within  another  county  or  counties,  then  said  notice 
shall  be  so  published  in  a  neVspaper  published  within  each  of  such 


^   27    — 

counties.  Such  notice  shall  require  the  electors  to  cast  ballots  which 
shall  contain  the  words  "  For  Exclusion,"  or  "  Against  Exclusion,"  or 
words  equivalent  thereto.  Such  election  shall  be  conducted  in  accord- 
ance with  the  general  election  laws  of  the  State;  provided,  that  no 
particular  form  of  ballot  shall  be  required. 

Sec.  8.  If  at  such  election  a  majority  of  all  the  votes  cast  shall  be 
against  the  exclusion  of  said  lands  from  the  district,  the  Board  shall 
deny  and  dismiss  said  petition  and  proceed  no  further  in  said  matter; 
but  if  a  majority  of  such  votes  be  in  favor  of  the  exclusion  of  said 
lands  from  the  district,  the  Board  shall  thereupon  order  that  the  said 
lands  mentioned  in  said  resolution  be  excluded  from  the  district.  The 
said  order  shall  describe  the  boundaries  of  the  district  should  the  exclu- 
sion of  the  said  lands  from  said  district  change  the  boundaries  of  the 
district;  and  for  that  purpose  the  Board  may  cause  a  survey  to  be  made 
of  such  portions  of  the  boundaries  as  the  Board  may  deem  necessary. 

Sec.  9.  Upon  the  entry  in  the  minutes  of  the  Board  of  any  of  the 
orders  hereinbefore  mentioned,  a  copy  thereof,  certified  by  the  President 
and  the  Secretary  of  the  Board,  shall  be  filed  for  record  in  the  Recorder's 
office  of  each  county  within  which  are  situated  any  of  the  lands  of  the 
district,  and  thereupon  said  district  shall  be  and  remain  an  irrigation 
district  as  fully,  to  every  intent  and  purpose,  as  it  would  be  had  no 
change  been  made  in  the  boundaries  of  the  district,  or  had  the  lands 
excluded  therefrom  never  constituted  a  portion  of  the  district. 

Sec.  10.  If  the  lands  excluded  from  any  district  under  this  Act  shall 
embrace  the  greater  portion  of  any  division  or  divisions  of  such  dis- 
trict, then  the  office  of  Director  for  such  division  or  divisions  shall 
become  and  be  vacant  at  the  expiration  of  ten  days  from  the  final  order 
of  the  Board,  under  section  eight  of  this  Act,  excluding  said  lands,  and 
such  vacancy  or  vacancies  shall  be  filled  by  appointment  by  the  Board 
of  Supervisors  of  the  county  where  the  office  of  such  Board  is  situated 
from  the  district  at  large.  A  Director,  appointed  as  above  provided,* 
shall  hold  his  office  until  the  next  regular  election  for  said  district  and 
until  his  successor  is  elected  and  qualified. 

Sec.  11.  At  least  thirty  days  before  the  next  general  election  of  such 
district,  the  Board  of  Directors  thereof  shall  make  an  order  dividing 
said  district  into  five  divisions,  as  nearly  equal  in  size  as  may  be  prac- 
ticable, which  shall  be  numbered  first,  second,  third,  fourth,  and  fifth, 
and  one  Director  shall  be  elected  by  each  division.  For  the  pur- 
poses of  elections  in  such  district,  the  said  Board  of  Directors  must 
establish  a  convenient  number  of  election  precincts,  and  define  the 
boundaries  thereof,  which  said  precincts  may  be  changed  from  time  to 
time,  as  the  Board  of  Directors  may  deem  necessary. 

Sec.  12.  A  guardian,  an  executor,  or  an  administrator  of  an  estate, 
who  is  appointed  as  such  under  the  laws  of  this  State,  and  who,  as  such 
guardian,  executor,  or  administrator,  is  entitled  to  the  possession  of  the 
lands  belonging  to  the  estate  which  he  represents,  may,  on  behalf  of 
his  ward  or  the  estate  which  he  represents,  upon  being  thereto  properly 
authorized  by  the  proper  Court,  sign  and  acknowledge  the  petition  in 
this  Act  mentioned,  and  may  show  cause,  as  in  this  Act  provided,  why 
the  boundaries  of  the  district  should  not  be  changed. 

Sec.  13.  In  case  of  the  exclusion  of  any  lands  under  the  provisions 
of  this  Act,  there  shall  be  refunded  to  any  and  all  persons  who  have 
paid  any  assessment  or  assessments  to  such  district,  or  any  lands  so 


—  28  — 

excluded,  any  sum  or  sums  so  paid.  Such  payments  shall  be  made  in 
the  same  manner  as  other  claims  against  such  district,  and  from  such 
fund  or  funds  as  the  Board  of  Directors  may  designate. 


CONFIRMATION  ACT. 

[Approved  March  IC,  1889.] 

Section  1.  The  Board  of  Directors  of  an  irrigation  district  now  or 
hereafter  organized  under  the  provisions  of  the  Act  entitled  "An  Act  to 
provide  for  the  organization  and  government  of  irrigation  districts,  and 
to  provide  for  the  acquisition  of  water  and  other  property,  and  for  the 
distribution  of  water  thereby  for  irrigation  purposes,"  approved  March 
seventh,  eighteen  hundred  and  eighty-seven,  may  commence  a  special 
proceeding,  in  and  by  which  the  proceedings  of  said  Board  and  of  said 
district  providing  for  and  authorizing  the  issue  and  sale  of  the  bonds  of 
said  district,  whether  said  bonds,  or  any  of  them,  have  or  have  not  then 
been  sold,  may  be  judicially  examined,  approved,  and  confirmed. 

Sec.  2.  The  Board  of  Directors  of  the  irrigation  district  shall  file  in 
the  Suj)erior  Court  of  the  county  in  which  the  lands  of  the  district,  or 
some  portion  thereof,  are  situated,  a  petition  praying,  in  effect,  that  the 
proceedings  aforesaid  may  be  examined,  approved,  and  confirmed  by  the 
Court.  The  petition  shall  state  the  facts  showing  the  proceedings  had 
for  the  issue  and  sale  of  said  bonds,  and  shall  state  generally  that  the 
irrigation  district  was  duly  organized  and  that  the  first  Board  of  Direct- 
ors was  duly  elected;  but  the  petition  need  not  state  the  facts  showing 
such  organization  of  the  district  or  the  election  of  said  first  Board  of 
Directors. 

Sec.  3.  The  Court  shall  fix  the  time  for  the  hearing  of  said  petition, 
and  shall  order  the  Clerk  of  the  Court  to  give  and  publish  a  notice  of 
the  filing  of  said  petition.  The  notice  shall  be  given  and  published  in 
the  same  manner  and  for  the  same  length  of  time  that  the  notice  of 
a  special  election  provided  for  by  said  Actf  to  determine  whether  the 
bonds  of  said  district  shall  be  issued,  is  required  to  be  given  and  pub- 
lished. The  notice  shall  state  the  time  and  place  fixed  for  the  hearing 
of  the  petition  and  the  prayer  of  the  petition,  and  that  any  person 
interested  in  the  organization  of  said  district,  or  in  the  proceedings  for 
the  issue  or  sale  of  said  bonds,  may,  on  or  before  the  day  fixed  for  the 
hearing  of  said  petition,  demur  to  or  answer  said  petition.  The  petition 
may  be  referred  to  and  described  in  said  notice  as  the  petition  of  the 

Board  of  Directors  of Irrigation  District  (giving  its  name),  praying 

that  the  proceedings  for  the  issue  and  sale  of  the  bonds  of  said  district 
may  be  examined,  approved,  and  confirmed  by  said  Court. 

Sec.  4.  Any  person  interested  in  said  district,  or  in  the  issue  or 
sale  of  said  bonds,  may  demur  to  or  answer  said  petition.  The  pro- 
visions of  the  Code  of  Civil  Procedure  respecting  the  demurrer  and  the 
answer  to  a  verified  complaint  shall  be  applicable  to  a  demurrer  and 
answer  to  said  petition.  The  persons  so  demurring  to  or  answering  said 
petition  shall  be  the  defendants  to  said  special  proceeding,  and  the 
Board  of  Directors  shall  be  the  plaintift'.  Every  material  statement  of 
the  petition  not  specifically  controverted  by  the  answer  must,  for  the 
purpose  of  said  special  proceeding,  be  taken  as  true;  and  each  person 


—  29  —  • 

failing  to  answer  the  petition  shall  be  deemed  to  admit  as  true  all  the 
material  statements  of  the  petition.  The  rules  of  pleading  and  practice 
provided  by  the  Code  of  Civil  Procedure,  which  are  not  inconsistent 
with  the  provisions  of  this  Act,  are  applicable  to  the  special  proceeding 
herein  provided  for.  A  motion  for  a  new  trial  must  be  made  upon  the 
minutes  of  the  Court.  The  order  granting  a  new  trial  must  specify  the 
issues  to  be  reexamined  on  such  new  trial,  and  the  findings  of  the  Court 
upon  the  other  issues  shall  not  be  atiected  by  such  order  granting  a  new 
trial. 

Sec.  5.  Upon  the  hearing  of  such  special  proceeding,  the  Court  shall 
have  power  and  jurisdiction  to  examine  and  determine  the  legality  and 
validity  of,  and  approve  and  confirm,  each  and  all  of  the  proceedings 
for  the  organization  of  said  district  under  the  provisions  of  the  said 
Act,  from  and  including  the  petition  for  the  organization  of  the  district, 
and  all  other  proceedings  which  may  aftect  the  legality  or  validity  of 
said  bonds,  and  the  order  for  the  sale,  and  the  sale  thereof.  The  Court 
in  inquiring  into  the  regularity,  legality,  or  correctness  of  said  proceed- 
ings, must  disregard  any  error,  irregularity,  or  omission  which  does  not 
affect  the  substantial  rights  of  the  parties  to  said  special  proceeding; 
and  it  may  approve  and  confirm  such  proceedings  in  part,  and  disap- 
prove and  declare  illegal  or  invalid  other  and  subsequent  parts  of  the 
proceedings.  The  Court  shall  find  and  determine  whether  the  notice  of 
the  filing  of  said  petition  has  been  duly  given  and  published  for  the  time 
and  in  the  manner  in  this  Act  prescribed.  The  costs  of  the  special 
proceedings  may  be  allowed  and  apportioned  between  all  the  parties,  in 
the  discretion  of  the  Court. 

Sec.  6.  An  appeal  from  an  order  granting  or  refusing  a  new  trial,  or 
from  the  judgment,  must  be  taken  by  the  party  aggrieved  within  ten 
days  after  the  entry  of  said  order  or  said  judgment. 


—    30 


SUPREME  COURT  DECISIONS  CONSTRUING  IRRIGATION  LAW. 


(No.  12456.     In  Bank,  May  31,  1888.) 

TURLOCK   IRPaGATION  DISTRICT,  Petitioner,  vs.  R.  W.  WILL- 
IAMS, Secretary,  etc.,  Respondent. 

[76  Cal.  360-372.] 

Ireigation  Districts — Act  of  March  7,  1887 — Constitutional  Law. — The  Act  of 
March  7,  1887,  providing  for  the  organization  and  government  of  irrigation  districts, 
and  the  provisions  thereof  relative  to  the  condemnation  of  private  property,  lands, 
water,  etc.,  for  the  uses  prescribed  therein,  are  constitutional. 

Idem — Irrigation  Districts  Public  Corporations.— The  irrigation  districts  provided 
for  in  the  Act  are  quasi  public  corporations,  in  tlie  sense  that  the  purposes  for  which 
they  are  tcf  organize  is  for  the  general  public  benefit. 

Idem — Method  of  Assessment — General  System  of  Taxation. — It  is  not  necessary  to 
their  validity  that  the  methods  adopted  for  the  levy  of  assessments  and  for  their 
collection  should  be  assimilated  to  and  follow  exactly  the  mode  provided  in  the 
Constitution  for  the  assessment  and  collection  of  taxes  for  general  State  purposes. 

This  is  a  proceeding  to  compel  the  respondent,  the  Secretary  of  the 
Turlock  Irrigation  District,  to  sign  certain  bonds  ordered  to  be  issued 
against  said  district  by  the  Board  of  Directors  thereof. 

The  Act  under  which  said  district  was  organized,  and  the  authority 
upon  which  it  is  asked  that  the  respondent  be  compelled  to  sign  said 
bonds,  was  approved  March  7,  1887. 

The  first  section  of  said  statute  provides  for  the  organization  of  irri- 
gation districts,  upon  petitions  filed  with  the  Board  of  Supervisors  by 
fifty  or  a  majority  of  freeholders  owning  land  susceptible  of  one  mode 
of  irrigation  from  a  common  source.  It  is  also  required  that  after  a 
petition  is  filed  the  Board  of  Supervisors  shall  make  an  order  fixing  the 
boundaries  of  the  district,  and  shall  thereupon  call  an  election,  of  which 
notice  is  required  to  be  given,  at  which  the  ©lectors  residing  within  the 
proposed  district  are  permitted  to  vote  for  or  against  its  organization. 

It  is  also  provided  that,  if  two  thirds  of  the  electors  residing  within 
said  proposed  district  vote  in  favor  of  its  organization  into  an  irrigation 
district,  the  Board  of  Supervisors  shall  declare  the  district  duly  organized. 

The  Act  also  provides  for  the  election  of  an  Assessor,  Collector,  and 
Treasurer,  and  a  Board  of  five  Directors  for  the  district.  To  the  Board  of 
Directors  is  given  the  power  to  manage  and  conduct  the  business  and 
atFairs  of  the  district,  make  and  execute  all  necessary  contracts,  and 
employ  and  appoint  such  agents,  officers,  and  employes  as  may  be 
required,  prescribe  their  duties,  establish  equitable  by-laws,  rules,  and 
regulations  for  the  distribution  and  use  of  the  water  among  the  owners 
of  said  land,  and  generally  to  perform  all  such  acts  as  shall  be  necessar}^ 
to  fully  carry  out  the  purposes  of  the  Act.  General  powers  are  given  to  the 
Board  of  Directors  to  enter  upon  lands  in  the  district  and  make  surveys, 
to  locate  the  lines  of  canals,  to  acquire  by  purchase  or  condemnation  all 
lands  and  waters  and  other  property  necessary  for  the  construction,  use, 
supply,  maintenance,  repair,  and  improvement  of  said  canal  or  canals 
and  works,  to  construct  dams,  reservoirs,  and  works  for  the  collection 
of  water,  and  to  do  any  and  every  lawful  act  necessary  to  be  done  in 


^  1 

—    ol     — 

order  that  sufficient  water  may  be  furnished  to  each  land  owner  in  said 
district  for  irrigation  purposes. 

Powers  are  also  conferred  upon  said  Board  of  Directors  to  estimate  and 
determine  the  amount  of  money  necessary  to  be  raised  for  the  purposes 
of  the  Act,  and  for  the  purpose  of  raising  said  money,  to  call  an  election 
and  submit  to  the  electors  residing  within  said  district  the  question 
whether  or  not  the  bonds  of  said  district  shall  be  issued  in  the  amount 
so  determined  to  be  necessar}'.  Said  Board  also  has  power  under  said 
Act  to  sell  said  bonds. 

It  is  provided  by  Section  13  of  said  Act  that  the  legal  title  to  all 
property  acquired  under  the  provisions  thereof  shall  immediately,  and 
by  operation  of  law,  rest  in  the  irrigation  district,  and  shall  be  held  by 
such  district  in  trust,  for  the  uses  and  purposes  set  forth  in  the  Act. 

In  said  section  it  is  provided  that  the  Board  may  hold,  use,  acquire, 
manage,  occupy,  and  possess  said  property  as  provided  in  said  Act.  It 
is  also  provided  that  the  bonds  issued  by  the  order  of  the  Board  of 
Directors,  and  the  interest  thereon,  shall  be  paid  by  revenue  derived  from 
an  annual  assessment  upon  the  real  jDroperty  of  the  district,  and  that 
all  the  real  property  in  the  district  shall  be  and  remain  liable  to  be 
assessed  for  such  payment,  as  provided  in  said  Act.  Provision  is  also 
made  for  the  assessment  of  said  property  by  the  Assessor  of  the  dis- 
trict, for  the  publication  of  the  delinquent  list,  the  collection  of  penal- 
ties on  delinquent  assessment,  the  sale  of  property  for  the  purpose  of 
paying  said  assessment,  the  redemption  of  the  property,  the  execution 
of  deeds  by  the  Collector  of  said  district,  transferring  absolutely  the 
property  of  land  OAvners  within  the  district  refusing  to  submit  to  the 
tax  and  assessment  provided  for,  the  vesting  of  title  in  the  purcliaser,  etc. 

It  is  also  provided  by  Section  23  of  said  Act  that  the  assessment  upon 
real  property  shall  constitute  a  lien  against  the  property  assessed  from 
and  after  the  first  of  March  of  any  year,  and  that  such  lien  shall  not  be 
removed  until  such  assessments  are  paid,  or  the  property  sold  for  the 
payment  thereof.  Provision  is  also  made  for  the  apportionment  of 
water  among  the  residents  of  the  district.  The  further  facts  are  stated 
in  the  opinion. 

P.  J.  Hazen,  Hatton  &  Fulkerth,  and  W.  H.  Beatty,  for  petitioner. 

The  districts  provided  for  in  the  Act  of  March  7,  1887,  are  public  or 
quasi  public  corporations,  and  the  purposes  for  which  they  are  intended 
are  public.  {Tide  Water  Co.  vs.  Coster,  18  N.  J.  Eq.  521;  90  Am.  Dec. 
634;  Hartwell  vs.  Armstrong,  19  Barb.  166;  Lux  vs.  Haggin,  69  Cal.  303; 
Gilmer  vs.  Lime  Point,  18  Cal.  252;  Cooley  on  Taxation,  2d  ed.,  103; 
Olmstead  vs.  Camp,  33  Conn.  532;  89  Am.  Dec.  221;  Talbot  vs.  Hudson, 
82  Mass.  417;  Coomes  vs.  Burt,  39  Mass.  427;  Wurts  vs.  Hoagland,  114 
U.  S.  606;  Head  vs.  Amoskeag  Manufacturing  Co.,  113  U.  S.  9;  Const., 
Art.  XIV,  Sec.  1;  Hager  vs.  Reclamation  District,  111  U.  S,  701;  Hager 
vs.  Yolo  County,  47  Cal.  222;  Reclamation  District  vs.  Hager,  66  Cal.  54; 
C.  W.  &  Z.  R.  R.  vs.  Com.  Clinton  Co.,  I  Ohio  St.  94;  Barhier  vs.  Con- 
nelly, 113  U.  S.  27;  S.  &  V.  R.  R.  Co.  vs.  Stockton,  41  Cal.  147.)  The 
charge  imposed  for  the  purpose  of  paying  the  bonds  was  strictly  an 
assessment  for  local  imj^rovements  and  not  a  general  tax;  consequently, 
the  methods  adopted  for  enforcing  the  assessment  need  not  conform  to 
the  requirements  of  the  Constitution  in  reference  to  general  taxation. 


—  32  — 

(Dillon  on  Municipal  Corporation,  752;  Desty  on  Taxation,  151-171; 
Cooley  on  Taxation,  639;  Goodrich  vs.  W.  &  D.  T.  Co.,  26  Ind.  119; 
Creighton  vs.  Scott,  14  Ohio  St.  438;  Seattle  vs.  Yesler,  1  Wash.  571; 
Dailey  vs.  Swope,  47  Miss.  367;  Mason  vs.  Spencer,  35  Kan.  512;  McGehee 
vs.  Mathis,  21  Ark.  40;  Emery  vs.  S.  F.  Gas  Co.,  28  Cal.  346;  Burnett  vs. 
Sacramento,  12  Cal.  76;  73  Am.  Dec.  518.)  The  Legislature  had  consti- 
tutional authority  to  commit  the  power  to  levy  the  assessment  to  a 
special  Board.  {Hager  vs.  Reclamation  District  No.  108,  111  U.  S.  701.) 
It  is  not  necessary  that  the  local  improvement  for  which  the  assessment 
is  levied  should  be  confined  within  the  district  taxed.  {Pattison  vs. 
Yolo  County,  13  Cal.  189.)  The  Legislature  has  power  to  determine  all 
questions  of  policy  involved  in  the  formation  of  an  irrigation  district, 
and  might  delegate  such  power  to  Boards  of  Supervisors  or  other  subor- 
dinate bodies.  (Pearson  vs.  Zahle,  78  Ky.  170;  Cooley  on  Taxation, 
150;  Kelsey  vs.  Trustees  of  Nevada,  18  Cal.  630;  Desty  on  Taxation, 
1247;  Hager  vs.  Reclamation  District  No.  108,  111  U.  S.  701;  Abbott  vs. 
Dodge,  18  Neb.  1240.)  The  mode  provided  by  the  Act  for  the  levy  and 
collection  of  the  assessment  is  not  a  denial  of  the  due  process  of  law. 
{Davidson  vs.  New  Orleans,  96  U.  S.  97;  Hager  vs.  Yolo  County,  47  Cal. 
222;  Burroughs  on  Taxation,  Sec.  145;  Hager  vs.  Reclamation  District 
No.  108,  111  U.  S.  708.)  The  assessment  need  not  be  strictly  according 
to  benefit.  Approximation  is  that  that  can  be  attained,  and  all  that  is 
required.  (Cooley  on  Taxation,  2d  ed.,  167;  Egyptial  L.  Co.  vs.  Hardin, 
27  Mo.  495;  72  Am.  Dec.  276;  Emery  vs.  S.  F.  Gas  Co.,  28  Cal.  346.) 
The  assessment  in  question  is  as  strictly  according  to  benefits  as  could 
be  attained  in  any  case,  and  far  more  so  than  in  most  cases  of  local 
assessments,  and  the  best  mode  applicable  in  this  matter.  (Cooley  on- 
Taxation,  2d  ed.,  660,  661;  Downer  vs.  Boston,  61  Mass.  277;  Piper's 
Appeal,  32  Cal.  530;  Wright  vs.  Boston,  63  Mass.  233;  Boston  vs.  Shaw, 
42  Mass.  130;  Goodrich  vs.  U.  &  D.  T.  Co.,  20  Ind.  119;  Dailey  vs. 
Swope,  47  Miss.  367;  Williams  vs.  Cammack,  27  Miss.  209;  61  Am.  Dec. 
508;  Wallace  vs.  Shelton,  14  La.  Ann.  498;  Spencer  vs.  Merchant,  100 
N.  Y.  585;  Excelsior  Manufacturing  &  P.  Co.  vs.  Green,  39  La.  Ann.  455; 
iewt  vs.  ri»son,  72  Cal.  404.) 

Louttit,  Woods  &  Levinsky,  for  respondent. 

The  statute  authorizes  the  assessment  and  taking  of  private  property 
for  a  private  purpose.  (Sedgwick  on  Constitutional  Law,  2d  ed.  446- 
450;  Anderson  vs.  Kerns  Draining  Co.,  19  Ind.  199;  77  Am.  Dec.  63; 
People  vs.  Saginaio,  26  Mich.  22;  Sadler  vs.  Longham,  34  Ala.  329; 
Memphis  Freight  Com.  vs.  Mayor,  etc.,  3  Coldw.  420;  Donnelly  vs.  Decker, 
58  Wis.  461;  Matter  of  Reyes,  72  N.  Y.  1;  Burk  vs.  Ayers,  26  Hun.  17; 
McQuillen  vs.  Hatton,  42  Ohio  St.  202;  Cheesebrough  vs.  Commissioners, 
37  Ohio  St.  508;  Reeves  vs.  Wood  County,  8  Ohio  St.  333;  Sessions  vs. 
Crunkilton,  20  Ohio  St.  349;  Cooley's  Constitutional  Limitations,  5th  ed., 
633. )  The  ,  statute  authorizes  the  assessment  and  taking  of  private 
property  without  reference  to  actual  benefits,  and  the  apportionment 
is  unequal  and  unjust;  consequently,  the  statute  is  unconstitutional. 
(Boston  vs.  Shaw,  42  Mass.  130;  Thomas  vs.  Gain,  35  Mich.  155;  24 
Am.  Rep.  535;  Lee  vs.  Ruggles,  62  111.  427;  Tide  Water  Co.  vs.  Coster,  18 
N.  J.  Eq.  527;  90  Am.  Dec.  634;  Howell  vs.  Bristoll,  8  Bush.  493;  Ham- 
mett  vs.  Philadelphia,  65  Pa.  St.  146;  3  Am.  Rep.  615;  Hoboken  Land, 


—  33  — 

etc.,  Co.  vs.  Mayor,  etc.,  36  N.  J.  L.  291;  Morris  and  Essex  R.  R.  Co.  vs. 
Jersey  City,  36  N.  J.  L.  56;  In  re  Request  River,  39  N.  J.  L.  433;  Kellogg 
vs.  Elizabeth,  40  N.  J.  L.  274;  Dyar  vs.  Farmington  Village  Corporation, 
70  Me.  528;  In  re  Washington  Avenue,  69  Pa.  St.  352.)  The  statute  is 
void,  because  it  authorizes  the  taking  of  private  property  without  due 
process  of  law.  (Cooley's  Constitutional  Limitations,  355;  Bank  of 
Columbia  vs.  Oalley,  4  Wheat.  244;  Davidson  vs.  New  Orleans,  96  U.  S. 
107.)  The  statute  authorizes  private  property  to  be  assessed  and  sold 
to  pay  for  a  future,  uncertain,  and  contingent  improvement.  {In  re  Drain- 
age of  Request  River,  39  N.  .J.  L.  433;  In  re  Fourth  Avenue,  3  Wend.  452; 
Const.  Cal.,  Art.  I,  Sec.  14.)  The  assessment  is  not  limited  to  the  ben- 
efits conferred.  The  statute  allows  the  Board  of  Directors  and  votes  of 
a  district  to  raise  the  assessment  as  high  as  they  please,  even  though  the 
cost  of  the  improvement  will  exceed  tlie  benefits.  {Crawford  vs.  People, 
82  111.  557;  In  re  Fourth  Avenue,  3  Wend.  452;  Welty  on  Assessments, 
Sees.  331-337;  Eel  River  Draining  Ass^n  vs.  Topp,  16  Ind.  242;  Dukes 
vs.  Working,  93  Ind.  504;  Echison  Ditch  Ass^n  vs.  Hills,  40  Ind.  410; 
Smith  vs.  Duck  Pond  Ditch  Asshi,  45  Ind.  96.)  The  statute  authorizes 
the  formation  of  a  district  and  the  assessment  of  lands  without  giving 
all  the  land  holders  the  right  of  hearing.  {Boorman  vs.  Santa  Barbara, 
65  Cal.  314;  Stuart  vs.  Palmer,  74  N.  Y.  183;  30  Am.  Rep.  289;  Remsen 
vs.  Wheeler,  105  N.  Y.  573;  Patten  vs.  Green,  13  Cal.  325;  Stockton  vs. 
Whitmore,  50  Cal.  554;  Cooley's  Constitutional  Limitations,  385-386.) 
The  Act  is  the  usurpation  of  judicial  powers  of  the  Legislature  and  the 
delegation  of  judicial  powers  to  the  Board  of  Supervisors.  (Cooley's 
Constitutional  Limitations,  89,  92.)  The  Act,  in  contravention  of  the 
Constitution,  delegates  to  the  Board  of  Directors  of  the  district  and  to 
the  electors  legislative  powers,  and  grants  to  a  special  commission  and 
private  individuals  power  to  levy  taxes.  (Const.,  Art.  XI,  Sec.  13; 
Moulton  vs.  Parks,  64  Cal.  166;  Ex  parte  Wall,  48  Cal.  279;  1'7  Am.  Rep. 
425;  Houghton  vs.  Austin,  47  Cal.  646;  Cooley  on  Taxation,  48-50; 
Richardson  vs.  Heydenfeldt,  46  Cal.  68.)  The  statute  grants  special 
privileges  to  a  certain  class  of  citizens,  and  discriminates  in  favor  of  a 
particular  industry.  (Opinion  of  Judges,  58  Me.  590;  Brewer  Brick  Co. 
vs.  Brewer,  62  Me.  62;  16  Am.  Rep.  395;  Ames  vs.  Port  Huron  Log  Driv- 
ing, etc.,  Co.,  11  Mich.  139;  Const.,  Art.  I,  Sec.  1;  Art.  IV,  Sec.  25, 
Sub.  17. 

A.  L.  Hart,  amicus  curise,  for  respondent. 

The  district  formed  under  the  Act,  for  the  purpose  of  irrigating  private 
lands,  and  thus  increasing  their  productiveness  and  value,  is  in  every 
respect  a  private  corporation.     (Wood's  Field  on  Corporations,  Sec.  3' 
1  Dillon  on  Municipal  Corporations,  3d  ed..  Sees.  22-56;   Ten  Eyck  vs 
Canal  Co.,  3  Harr.  200;  37  Am.  Dec.  233;  Hanson  vs.  Vernon,  27  Iowa 
28;  1  Am.  Rep.  215;  Regents  of  University  vs.  Williams,  9  Gill.  &  J.  365 
31  Am.  Dec.  72;  Allen  vs.  McKean,  1  Sum.  278;  Dartmouth  College  vs 
Woodxoard,  4  Wheat.  518;  Bailey  vs.  Mayor,  3  Hill.  531 ;  38  Am.  Dec.  669 
Rundell  vs.  D.  &  R.  C.  Co.,  1  Wall.  Jr.  275;   Tinsman  vs.  Belvidere  Dela- 
ware R.  R.  Co.,  26  N.  J.  L.  148;  59  Am.  Dec.  565;  North   Yarmouth  vs. 
Skillings,  45  Me.  133;  71  Am.  Dec.  530;  Ellis  vs.  Marshall,  2  Mass.  268; 
3  Am.  Dec.  49;   Yarmouth  vs.  North  Yarmouth,  34  Me.  411;  56  Am.  Dec. 
666;  Payne  vs.  Treadwell,  16  Cal.  233.) 


34 


W.  L.  Dudley,  for  respondent. 


The  district  created  under  the  Act  is  a  public  corporation.  {Hager 
vs.  Yolo  County,  47  Cal.  223;  Dean  vs.  Davis,  51  Cal.  406;  People  vs.  Will- 
iams, 56  Cal.  647;  People  vs.  La  Rue,  67  Cal.  526;  Reclamation  District  vs. 
Hager,  56  Cal.  54.)  The  assessment  levied  for  the  revenue  purposes  of 
the  Act  is  neither  more  nor  less  than  taxation,  and  the  amount  imposed 
upon  each  separate  parcel  of  real  jsroperty  is  a  tax.  {Emery  vs.  S.  F. 
Gas  Co.,  28  Cal.  345;  Taylor  vs.  Palmer,  31  Cal.  240;  People  vs.  Whyler, 
41  Cal.  351;  William.s  ys.  Corcoran,  46  Cal.  553;  People  vs.  Austin,  47  Cal. 
353;  Hager  vs.  Yolo  County,  47  Cal.  222;  People  vs.  Lynch,  51  Cal.  15; 
21  Am,  Rep.  677.)  The  proceedings  for  the  levying  and  collection  of 
the  assessment,  as  j^rovided  in  the  Act,  are  repugnant  to  the  Constitu- 
tion.    (Const.,  Art.  XIII,  Sees.  8-9;  Art.  XI,  Sec.  19;  Art.  XIV,  Sec.  1.) 

W.  T.  Baggett,  for  respondent. 

The  Act  is  special  legislation.  It  relates  to  particular  localities — 
districts  susceptible  of  irrigation  from  a  common  source.  .  Such  legisla- 
tion is  prohibited  by  Subdivisions  10,  28,  and  33  of  Section  25  of  Article' 
IV,  Section  1  of  Article  XII,  and  Section  6  of  Article  XI  of  the  Consti- 
tution of  the  State.  {Earle  vs.  Board  of  Education,  55  Cal.  489;  Desmond 
vs.  Dunn,  55  Cal.  242;  Ex  parte  Westerfield,  55  Cal.  550;  36  Am.  Rep.  47.) 

By  FooTE,  C: 

This  is  an  application  for  a  writ  of  mandate  to  compel  the  defendant, 
as  the  Secretary  of  an  irrigation  district  (under  "An  Act  to  provide  for 
the  organization  and  government  of  irrigation  districts,"  etc.,  approved 
March  7,  1887,  Sess.  Laws,  p.  29),  to  sign  certain  bonds  which  the 
applicant  proposes  to  issue  under  Section  15  of  that  Act. 

The  refusal  of  the  defendant  to  sign  those  instruments  is  based  upon 
the  ground  that  the  statute  is  unconstitutional  and  void. 

One  of  the  distinguished  counsel  for  the  defendant  contends  that  the 
districts  contemplated  by  the  Act  are  private  corporations,  formed  for 
private  purposes.  To  use  his  own  language:  "Such  an  organization 
has  none  of  the  elements  of  a  public  municipal  body." 

While  another  able  attorney  on  the  same  side  contends  that  "All  the 
constituents  of  the  public  corporation  are  present,  and  to  that  class  of 
corporations  a  district  of  the  statute  must  be  assigned,"  and  claims  that 
the  money  sought  to  be  raised  under  the  Act  is  a  general  tax,  and  that 
the  system  of  organization  of  the  corporations  prescribed  in  the  Act  is 
in  conflict  with  the  general  plan  of  constitutional  political  organization, 
and  that  the  mode  of  taxation  provided  is  different  from  that  made 
necessary  by  the  Constitution  for  general  governmental  purposes,  and 
therefore  the  Act  is  void. 

We  are  inclined  to  agree  with  the  last  mentioned  advocate  of  the 
defendant's  cause,  but  to  the  extent  only  that  the  district,  when  organ- 
ized as  provided  in  the  Act  under  discussion,  has  all  the  elements  of 
corporations  formed  to  accomplish  a  public  use  and  purpose,  according 
to  the  rules  of  law  laid  down  in  Hager  vs.  Supervisors  of  Yolo  County, 
47  Cal.  223;  Dean  vs.  Davis,  51  Cal.  406;  People  vs.  Williams,  56  Cal. 
647;  People  vs.  La  Rue,  67  Cal.  526;  Reclamation  District  vs.  Hager,  66 
Cal.  54. 


The  results  to  be  derived  from  a  drainage  law,  and  one  which  has  for 
its  purpose  the  irrigation  of  immense  bodies  of  arid  lands,  must  neces- 
sarily be  the  same,  as  respects  the  public  good;  the  one  is  intended  to 
bring  into  cultivation  and  make  productive  a  large  acreage  of  land 
which  would  otherwise  remain  uncultivated  and  unproductive  of  any 
advantage  to  the  State,  being  useless,  incapable  of  yielding  any  revenue 
of  importance  towards  the  support  of  the  general  purposes  of  State 
government,  by  reason  of  too  much  water  flowing  over,  or  standing 
upon,  or  percolating  through,  them. 

The  other  has  for  its  main  object  the  utilizing  and  improvement  of 
vast  tracts  of  arid  and  unfruitful  soil,  desert-like  in  character,  much  of 
which,  if  water  in  sufficient  quantity  can  be  conducted  upon  and 
applied  to  it,  may  be  made  to  produce  the  same  results  as  flow  from  the 
drainage  of  large  bodies  of  swamp  and  overflowed  lands. 

Such  a  general  scheme  by  which  immigration  may  be  stimulated,  the 
taxable  property  of  the  State  increased,  the  relative  burden  of  taxation 
as  to  the  whole  people  decreased,  and  the  comfort  and  advantage  of 
many  thriving  communities  subserved,  would  seem  to  redound  to  the 
common  advantage  of  all  the  people  of  the  State,  to  a  greater  or  less 
extent. 

It  is  true  that,  incidentally,  private  persons  and  private  property  may 
be  benefited,  but  the  main  plan  of  the  Legislature,  to  wit:  the  general 
welfare  of  the  whole  people,  inseparably  bound  up  with  the  interests  of 
those  living  in  sections  which  are  dry  and  unproductive  without  irriga- 
tion, is  plain  to  be  seen  pervading  the  whole  of  the  Act  in  question. 

This  is  not  a  law  passed  to  accomplish  exclusive  and  selfish  private 
gains;  it  is  an  extensive  and  far-reaching  plan,  by  which  the  general 
public  may  be  vastly  benefited;  and  the  Legislature  acted  with  good 
judgment  in  enacting  it. 

"  If  the  use  for  which  the  property  is  taken  be  to  satisfy  a  great  public 
want  or  public  exigency,  it  is  a  public  use  within  the  meaning  of  the 
Constitution,  and  the  State  is  not  limited  to  any  given  mode  of  applying 
that  property  to  satisfy  the  want  or  meet  the  exigency."  {Gilmer  vs. 
Lime  Point,  18  Cal.  252.) 

"  For  the  most  part,  the  term  '  public  purposes '  is  employed  in  the 
same  sense  in  the  law  of  taxation  and  in  the  law  of  eminent  domain." 
(Cooley  on  Taxation,  2d  ed.,  113.) 

So  that  a  law  which  is  for  a  public  purpose,  and  M^hich  may  concern 
the  public  welfare,  which  lays  an  assessment  upon  property  according 
to  approximate  quality  of  benefit,  is  not  unconstitutional  because  of 
that  feature. 

Perhaps  to  a  greater  extent  than  any  of  the  other  States,  California, 
speaking  through  the  Acts  of  her  Legislature,  her  Court  of  last  resort, 
and  Constitution,  seems  to  have  considered  the  irrigation  of  lands,  and 
the  supplying  of  mines  with  water,  as  of  great  public  concern.  (Code 
Civ.  Proc,  Sec.  1238;  Cuvimings  vs.  Peters,  56  Cal.  596;  Lux  vs.  Haqqin 
69  Cal.  302-305;  Const.,  Art.  XIV,  Sec.  1.) 

And  in  no  sense  can  it  be  said  that  under  the  Act  in  question  the 
assessment  to  pay  the  bonds  is  to  be  levied  or  collected  in  order  that 
one  man  may  take  another's  property  for  his  own  exclusive  use. 

Therefore,  it  is  evident  that  the  districts  in  question,  as  organized 
under  the  Act,  are  not  private  corporations,  organized  exclusively  for 
the  purposes  of  private  gains.     They  are  at  least  quasi  public  corpora- 


—  36  — 

tions  in  the  sense  that  the  ]Durpose  for  which  they  are  to  be  organized 
is  for  the  general  public  benefit. 

Nor  does  it  follow  that  the  method  of  assessments  and  their  collec- 
tion adopted  must  be  assimilated  to  and  follow  exactly  the  mode  pro- 
vided in  the  Constitution  for  the  assessment  and  collection  of  taxes  for 
general  State  purposes. 

The  nature  of  the  assessment  is  one  for  local  improvements,  which^ 
however,  eventuate  in  the  advancement  of  the  public  good,  and  such 
assessments  and  collections  can  be  lawfully  made. 

It  is  "  clear  that  those  clauses  of  the  Constitution  which  provide  that 
taxation  shall  be  equal  and  uniform,  and  which  describe  the  mode  of 
assessment,  and  the  persons  by  whom  it  shall  be  made,  and  that  all 
property  shall  be  taxed,  have  no  application  to  assessments  levied  for 
local  improvements."    {Hager  vs.  Supervisors  of  Yolo  County,  47  Cal.  222. ) 

And  there  was  said  of  the  Drainage  Act,  so  it  inay  be  said  of  the  one 
in  hand  relative  to  irrigation,  that  a  system  which  has  for  its  object  the 
reclaiming  from  the  desert  of  vast  bodies  of  land,  "  may  justly  be  re- 
garded a  public  improvement  of  great  magnitude,  and  of  the  utmost 
importance  to  the  community."  It  has  been  planned  by  the  Legislature 
on  the  basis  of  "dividing  a  territory  to  be  reclaimed  into  districts,  and 
assessing  the  cost  of  the  improvements  on  the  lands  to  be  benefited."' 
In  none  of  the  States  where  such  a  course  has  been  pursued  "  has  the 
power  of  the  Legislature  to  cause  such  improvements  to  be  made  in  this 
method  ever  been  denied;  nor  do  we  see  any  tenable  ground  upon 
which  it  can  be  questioned."  {Hager  vs.  Supervisors  of  Yolo  County, 
47  Cal.  222.) 

"The  fact  that  the  land  is  situated  in  more  than  one  county  cannot 
affect  the  power  of  the  State  to  delegate  authority  for  the  establishment 
of  the  reclamation  district,"  or  an  irrigating  district,  "to  the  Super- 
visors of  the  county  containing  the  greater  part  of  the  lands.  Such 
authority  may  be  lodged  in  any  Board  or  tribunal  which  the  Legislature 
may  designate.  *  *  *  The  expense  of  such  works  may  be  charged 
against  parties  specially  benefited,  and  be  made  a  lien  upon  their  prop- 
erty. All  that  is  required  in  such  cases  is,  that  the  charges  shall  be 
apportioned  in  some  just  and  reasonable  mode,  according  to  the  benefit 
received.  Absolute  equality  in  imposing  them  may  not  be  reached;  only 
an  approximation  to  it  may  be  attainable.  If  no  direct  or  invidious 
discrimination  in  favor  of  certain  persons  to  the  prejudice  of  others  is 
made,  it  is  not  an  objection  to  the  mode  pursued  that  to  some  extent 
inequalities  may  arise.  It  may  possibly  be  that  in  some  portions  of  the 
country  there  are  overflowed  lands  of  so  large  an  extent,  '  or  arid  lands 
requiring  irrigation,'  that  the  expense  of  their  reclamation  should  prop- 
erly be  borne  by  the  State.  But  this  is  a  matter  of  purely  legislative 
discretion.  Whenever  a  local  improvement  is  authorized,  it  is  for  the 
Legislature  to  prescribe  the  way  in  which  the  m.eans  to  meet  its  cost 
shall  be  raised;  whether  by  general  taxation  or  by  laying  the  burden 
upon  the  district  especially  benefited  by  the  expenditure."  {Hager  vs. 
Bee.  Dist.,  Ill  U.  S.  705,  citing  Mobile  Co.  vs.  Kimball,  102  U.  S.  691-704.) 

The  provisions  of  the  Act  relative  to  the  condemnation  of  private  prop- 
erty, lands,  water,  etc.,  for  the  uses  prescribed  therein,  are  in  harmony 
with  the  Constitution  and  State  laws,  and  in  strict  consonance  with  the 
views  of  the  Supreme  Court  in  the  case  of  Ltix  vs.  Haggin,  69  Cal.  302— 
305. 


There  are  many  other  points  made  by  the  various  counsel  for  the 
appellant,  which  are  some  of  them  at  war  with  others;  but  time  and 
space  do  not  suffice  to  advert  to  them  all  in  detail.  It  seems  plain  that 
none  of  the  objections  raised  to  the  signing  of  the  bonds  by  the  respond- 
ent are  tenable.  The  Act  under  discussion  in  all  respects  complies  with 
the  various  provisions  of  the  State  Constitution.  We  therefore  advise 
that  the  demurrer  to  the  answer  be  sustained,  and  the  defendant  com- 
manded to  sign  the  bonds  by  a  peremptory  writ  of  mandate. 

Belcher,  C.  C,  and  Hayne,  C,  concurred. 

By  the  Court: 

For  the  reasons  given  in  the  foregoing  opinion,  the  demurrer  to  the 
answer  is  sustained;  and  it  is  ordered  that  a  peremptory  writ  of  man- 
date issue  commanding  the  defendant  to  sign  the  bonds. 


(No.  12954.     In  Bank,  May  31,  1889.) 

CENTRAL  IRRIGATION  DISTRICT,  Respondent,  vs.  R.  De  LAPPE, 

Secretary,  etc.,  Defendant,  and   LEE    S.  WAKEFIELD,  Inter- 
vener, Appellants. 

[79  Cal.  351-365.] 

Irrigation  Districts — Public  Corporations. — Irrigation  districts  are  iiublic  corpora- 
tions to  the  same  extent  as  reclamation  districts. 

Idem — Proceedings  for  Formation  to  be  Liberally  Construed. — The  rule  that 
proceedings  to  divest  a  person  of  his  property  in  invitum  are  to  be  strictly  construed 
does  not  apply  to  ])roceedings  for  the  formation  of  irrigation  districts.  Such  pro- 
ceedings are  to  be  liberally  construed  to  carry  out  the  purposes  of  the  law. 

Petition — Order  Establishing  Boundaries — Description — Rules  of  Construction — 
Monuments — False  Calls — Parol  Evidence. — A  description  by  metes  and  bounds, 
which  would  be  sufficient  in  an  ordinary  deed,  is  sufficient  in  the  petition  and  in  the 
order  establishing  boundaries;  and  the  same  general  rules  of  construction  apply  in 
each  case.  Therefore,  plain  monuments  control  courses  and  distances,  false  calls  may 
be  rejected  and  lines  supplied  l)y  intendment,  and  parol  evidence  is  admissible  to 
explain  and  locate  calls. 

Bond — Defective  Reference  to  Petition. — If  the  bond  required  from  the  petitioners 
recites  two  names  as  petitioners  which  were  not  such  in  fact,  but  was  filed  with  the 
petition,  and  appears  that  there  was  no  other  petition  than  the  one  filed,  the  refer- 
ence is  sufficient  for  the  purposes  of  identification. 

Idem — Condition.— Where  the  statute  required  a  bond  conditioned  to  paying  a  certain 
contingency,  and  the  condition  of  the  bond  given  was  to  pay  in  any  event.  Held, 
that  the  bond  was  sufficient. 

Idem — Power  of  the  Board  to  Allow  a  New  Bond  to  be  Filed  in  Lieu  of  a 
Defective  One,  and  to  Continue  the  Hearing  for  that  Purpose. — If  the  bond 
filed  with  the  petition  is  defective  merely,  and  the  Board  has  power  to  allow  a  new 
bond  to  be  filed,  and  to  continue  the  hearing  for  that  purpose,  such  new  bond 
"accompanies"  the  petition  within  the  meaning  of  the  statute. 

Presentation  of  Petition — Regular  Meeting  of  Board — Collateral  Attack  on 
Regularity  of  Meeting. — ^Meetings  of  the  Board  held  as  and  for  regular  meetings 
under  an  ordinance  prescribing  the  meetings,  and  which  were  the  only  "regular" 
meetings  held  for  a  long  period,  are  "regular  "  within  the  meaning  of  the  statute,  and 
objections  to  the  validity  of  the  proceedings  on  the  passage  of  the  ordinance  are 
immaterial.  Even  if  the  ordinance  was  not  properly  passed,  that  fact  would  not 
have  any  such  collateral  and  far-reaching  effect  as  to  render  abortive  all  the  public 
business  transacted  at  such  meeting. 

Publication— Slight  Mistakes. — Slight  mistakes  in  the  spelling  of  names,  etc.,  in  the 
publication  are  unimportant. 

Modification  by  the  Board  of  the  Boundaries  of  the  Proposed  District — Includ- 
ing OTHER  Lands  upon  Request  of  Owners — Excluding  Lands  which  are 
Embraced  within  a  Description  of  Petition,  and  which  are  Susceptible  of 
Irrigation. — The  Board  has  power  upon  final  hearing  to  include  within  the  district 


—  38  — 

lands  not  included  by  the  petition,  upon  application  of  the  owners  thereof;  such 
application  need  not  be  in  writing,  and  if  lands  which  are  embraced  within  the 
description  ot  the  petition,  and  which  are  susceptible  of  irrigation,  etc.,  are  excluded 
by  the  Board,  its  action  is  final  so  far  as  the  validity  of  the  organization  of  tlie  dis- 
trict is  concerned. 

Idem — Statement  of  Reason  of  the  Decision  of  the  Board. — It  is  not  necessary  that 
the  order  establishing  the  boundaries  should  state  the  reasons  of  the  Board  for 
excluding  lands.     Such  order  is  a  sufficient  decision. 

Election  Proclamation — Publication — Number  of  Insertions. — The  provision  that 
the  election  proclamation  shall  be  published  "for  three  weeks  prior  to  the  election " 
designates  the  period  of  publication  only,  and  not  the  number  of  insertions,  which 
latter  is  left  to  tlie  reasonable  discretion  of  the  Board.  Instance  of  reasonable  publi- 
cation. 

Election  Precincts — When  to  be  Established. — The  election  precincts  are  not  required 
to  be  established  thirty  days  before  election.  It  is  sufficient  if  they  are  established 
by  the  election  proclamation,  which  is  required  to  be  published  for  three  weeks. 

Form  of  District  Bonds. — Bonds  of  the  district  drawn  so  as  to  be  each  payable  in 
installments  are  in  proper  form. 

'  Appeal  from  a  judgment  of  the  Superior  Court  of  Colusa  County. 

The  facts  are  stated  in  the  opinion. 

W.  F.  Goad  and  W.  C.  Belcher,  for  Appellant  De  Lappe. 
H.  M.  Alhery  and  K.  Albery,  for  Appellant  Wakefield. 
Richard  Bayne,  for  Respondent. 
Stanton  L.  Carter,  amicus  curias. 

By  Hayne,  C: 

This  was  an  application  for  mandamus  to  compel  the  Secretary  of  an 
irrigation  district  to  sign  and  seal  certain  bonds.  One  of  the  property 
owners  of  the  district  was  allowed  to  intervene  for  the  purpose  of  con- 
testing the  validity  of  the  bonds.  The  Court  below  awarded  the- 
mandamus,  and  the  defendant  and  intervener  appeal. 

The  district  was  organized  under  the  Act  known  as  the  Wright  Law. 
(See  Laws  1887,  p.  29.)  This  Act  was  held  to  be  constitutional  in  TurlocJc 
Irrigation  District  vs.  Williams,  76  Cal.  360.  In  that  case  irrigation  dis- 
tricts were  likened  to  districts  organized  for  the  reclamation  of  swamp 
lands;  and  the  Court  said  that  it  was  inclined  to  think  that  they  were 
to  be  regarded  as  public  corporations.  We  think  that  the  analogy 
between  the  two  kinds  of  corporations  is  strong.  The  purpose  of  the- 
one  is  to  make  large  bodies  of  land  fit  for  cultivation  by  removing  the 
excess  of  water;  and  that  of  the  other  is  to  make  large  bodies  of  land 
fit  for  cultivation  by  distributing  water  over  them.  Their  general  pow- 
ers are  similar  in  many  respects,  and  they  are  organized  upon  the  sarne 
plan.  It  is  settled  that  reclamation  districts  are  public  corporations. 
{Dean  vs.  Davis,  51  Cal.  410,  411;  People  vs.  Rec.  DisL,  53  Cal.  348;  Peo- 
ple vs.  Williams,  56  Cal.  647;  Hope  vs.  Perdue,  62  Cal.  546;  People  vs. 
La  Rue,  67  Cal.  528.)  And  we  think  that  irrigation  districts  must  be 
held  to  be  so,  to  the  same  extent. 

Many  objections  are  taken  to  the  proceedings  of  the  organization  of 
the  district.  And  the  argument  in  relation  thereto  rests  in  great  part 
upon  the  propositions  that  the  proceedings  are  to  be  strictly  construed. 
This  is  put  upon  two  grounds.  It  is  said,  in  the  first  place,  that  the- 
proceedings  are  for  the  purpose  of  divesting  the  citizen  of  his  property 
in  invitum.  It  is  true  that  later  on  provision  is  made  for  assessing  the- 
property  within  a  district  for  the  purpose  of  defraying  expenses.     But 


—  39  — 

no  assessments  have  yet  been  levied,  and  none  are  involved  in  the  case 
before  us.  The  objections  made  relate  to  the  organization  of  the  district. 
The  primary  purpose  of  such  organization  is  to  perform  certain  impor- 
tant public  functions.  The  power  of  assessment,  it  is  true,  is  incidental; 
but  in  the  same  way  it  is  incidental  to  cities  and  other  municipal  cor- 
porations, strictly  so  called,  for  the  improvement  of  streets,  etc.  And  it 
can  no  more  be  said  that  for  this  reason  proceedings  for  the  organization 
of  irrigation  districts  are  for  the  purpose  of  depriving  the  citizen  of  his 
property  in  invitum,  than  the  same  could  be  said  of  proceedings  for  the 
organization  of  cities  and  other  municipal  corporations. 

It  is  said,  in  the  next  place,  that  the  district  was  not  created  by  the 
Legislature  itself,  but  by  or  under  the  supervision  of  a  local  body.  But 
all  municipal  corporations  in  the  State  are  henceforth  to  be  created  in 
this  way.  The  Constitution  provides  that  corporations  for  municipal 
purposes  shall  not  be  created  by  special  laws,  but  shall  be  organized 
under  such  general  laws  as  the  Legislature  shall  provide.  (Art.  XI, 
Sec.  6.)  This  necessitates  organization  under  some  kind  of  local  super- 
vision. And  the  general  laws  which  the  Legislature  has  provided  require 
that  the  organization  shall  be  under  the  supervision  of  a  local  body, 
much  in  the  same  way  as  in  the  case  of  an  irrigation  district.  A  petition, 
"  which  shall  set  forth  and  particularly  describe  the  proposed  boundaries 
of  such  corporation,"  is  to  be  presented  to  the  Board  of  Supervisors  of 
the  county,  which  body  is  to  deal  with  it  much  in  the  same  manner  as 
the  Board  is  to  deal  with  the  petition  for  the  formation  of  an  irrigation 
district.  In  fact,  the  phraseology  of  an  irrigation  law  is  so  similar  to 
that  of  a  municipal*  corporation  Act  as  to  make  it  evident  that  the 
former  was  modeled  upon  the  latter.  (See  Laws  1883,  p.  94.)  Hence, 
if  proceedings  for  the  formation  of  irrigation  districts  are  to  be  strictly 
construed  because  they  are  organized  under  the  supervision  of  a  local 
body,  proceedings  for  the  formation  of  municipal  corjDorations  must  be 
so  construed  for  the  same  reason.  But  the  consequences  of  wiping  out 
municipal  organizations,  perhaps  after  property  rights  have  grown  up, 
because  of  some  slip  in  the  preliminary  proceeding,  would  be  so  serious 
that  we  cannot  think  that  any  Court  would  adopt  the  strict  rule  of  con- 
struction which  would  require  it.  It  will  be  time  enough  to  apply  such 
a  rule  when  questions  as  to  the  extent  of  the  powers  arise.  So  far  as 
proceedings  for  the  organization  are  concerned,  we  think  that  a  reasonably 
liberal  rule  of  construction  should  be  adopted  to  carry  out  the  wise  pur- 
poses of  the  law. 

In  the  light  of  this  rule,  we  proceed  to  examine  the  various  objections 
made: 

1.  Several  objections  are  taken  to  the  description  contained  in  the 
petition.  They  are  based  upon  the  requirement  of  the  second  section 
of  the  Act,  that  such  petition  "  shall  set  forth  and  particularly  describe 
the  proposed  boundaries  of  such  districts."  It  is  probable  that  this 
provision  requires  a  description  by  metes  and  bounds,  for  it  is  "  the 
boundaries"  which  are  to  be  described,  and  not  merely  the  district. 
But  we  think  that  a  description  by  metes  and  bounds  which  would  be 
sufficient  in  an  ordinary  deed  is  a  compliance  with  the  provisions. 
"  The  same  construction  that  is  given  to  grants  is  given  to  statutes 
which  prescribe  the  boundaries  of  incorporated  territories."  {Cold 
Spring  Iron  Works  vs.  Tolland,  9  Gush.  496.)  It  has  even  been  held 
that  a  more  liberal  rule  should  be  applied.     {Hamilton  vs.  McNeil,  13 


—  40  — 

Gratt.  394.)     But  at  all  events,  a  description  by  metes  and  bounds 
which  would  be  good  in  a  deed  is  sufficient  in  the  petition. 

Now,  the  main  point  in  regard  to  the  description  is  that  it  cannot  be 
made  to  close  upon  itself.  The  learned  counsel  say  that  "  the  only  way 
in  which  this  could  be  done  would  be  to  change  the  distance  '  two  hun- 
dred feet,'  in  line  10  of  folio  14,  to  '  two  thousand  feet,'  and  '  five  hundred 
and  forty  feet,'  in  line  6  of  folio  18,  to  '  five  thousand  four  hundred  feet.' " 
But  if  this  is  necessary,  we  think  that  it  can  and  should  be  done  upon 
the  data  furnished  by  the  petition  itself.  The  first  calls  referred  to  is  as 
follows:  "Thence  south  34  degrees,  east  two  hundred  feet  to  stake  208." 
For  anything  it  appears  to  the  contrary,  this  stake  is  a  perfectly  plain 
monument;  and  being  so,  it  must  control  the  statement  of  the  distance. 
(Mills  vs.  Lux,  45  Cal.  273;  Penry  vs.  Richards,  52  Cal.  672.)  If,  there- 
fore, it  is  two  thousand  feet  from  the  point  of  departure,  the  call  for  two 
hundred  must  be  rejected.  False  calls  may  be  rejected,  and  lines  sup- 
plied by  intendment  in  the  description  of  the  boundaries  of  a  municipal 
corporation.  (In  re  Inhabitants  of  Ipswich,  13  Pick.  431.)  A  false  call 
may  be  rejected  even  in  a  tax  deed.  [Bosivorth  vs.  Danzien,  25  Cal.  299.) 
The  objection  to  the  call  for  "five  hundred  and  forty  feet"  is  to  be  dis-' 
posed  of  in  a  similar  way. 

It  is  also  contended  that  the  starting  point  and  certain  other  calls  in 
the  description  are  too  indefinite.  But  we  cannot  say  from  the  face  of 
the  paper  that  this  is  so.  And  the  evidence  to  explain  and  locate  the  calls 
(which  was  clearly  admissible:  Reamer  vs.  Nesmith,  34  Cal.  626)  makes 
them  sufficiently  definite. 

Similar  objections  are  made  to  the  description*  in  the  order  of  the 
Board  establishing  the  boundaries  of  the  district,  and  similar  answers 
apply. 

2.  It  is  contended  that  a  proper  bond  was  not  filed  with  the  petition. 
The  provision  of  the  Act  is  that  "  the  petitioners  must  accompany  the 
petition  with  a  good  and  sufficient  bond,  to  be  approved  by  the  said 
Board  of  Supervisors,  in  double  the  amount  of  the  probable  cost  of 
organizing  such  district,  conditioned  that  the  bondsmen  will  pay  all  said 
costs  in  case  said  organization  shall  not  be  efiected  *  *  *  when  such 
petition  is  presented,  the  said  Board  of  Supervisors  shall  hear  the  same," 
etc.     (Sec.  2.) 

The  petitioners  presented  and  the  Board  approved  a  bond,  which  is 
claimed-to  be  insufficient  in  form.  The  particulars  in  which  it  is  said 
to  be  insufficient  are  the  following:  It  is  said,  in  the  first  place,  that 
the  recital  in  the  bond  misdescribes  the  petition.  The  petition  was 
signed  by  sixty-four  persons,  among  whom  were  J,  A.  Sutton,  James 
McDermott,  George  B.  Harden,  George  M.  Sutton,  and  P.  R.  Garnett. 
The  recital  in  the  bond  is,  that,  "whereas,  J.  A.  Sutton,  James  McDer- 
mott, George  B.  Harden,  George  M.  Sutton,  P.  R.  Garnett,  N.  D.  Ride- 
out,  A.  J.  Tully,  and  others,  their  associates,  propose  to  present  here- 
with" a  petition,  etc.  Rideout  and  Tully  did  not  sign  the  petition. 
The  argument  is  that  the  petition  filed  does  not  correspond  to  the  one 
referred  to  in  the  bond,  and  consequently  that  there  was  no  bond  upon 
that  petition.  The  recital,  however,  is  not  a  petition  actually  presented, 
but  of  one  proposed  to  be  presented.  The  bond  did,  in  fact,  accompany 
this  petition.  And  we  think  that  this  circumstance,  coupled  with  the 
recital,  is  sufficient  to  identify  the  document. 

In  the  next  place,  it  is  said  that  the  bond  was  not  conditioned  as  re- 


—  41  — 

quired  by  the  Act.  The  condition  was,  that  the  bond  should  be  void  "  if 
said  obligors  or  bondsmen  shall  pay  all  the  costs,"  etc.,  while  the  con- 
dition required  b}'  the  statute  is,  that  the  bondsmen  shall  pay  the  costs 
"in  case  said  organization  shall  not  be  effected."  The  difference  is, 
therefore,  that  the  bond  given  provided  that  the  bondsmen  should  pay 
the  cost  in  any  event,  while  the  statute  only  requires  that  they  should 
pay  in  a  certain  contingency.  We  think,  however,  that  the  bond  may 
fairly  be  said  to  include  the  provision  required  by  the  statute,  and  that 
it  is  not  vitiated  by  including  a  something  that  was  not  required.  And 
the  use  of  th'e  singular  number  in  the  phrase  "  if  said  obligor  or  bonds- 
man shall  pay,"  etc.,  is  unimportant. 

But  at  most  the  bond  was  defective  merely.  And,  if  it  be  assumed 
for  the  purposes  of  the  case  that  the  giving  of  a  bond  was  jurisdictional, 
we  think  that  the  Board  had  power  to  allow  anew  one  to  be  given  before 
taking  action  on  the  petition.  The  petition  was  presented,  pursuant  to 
notice,  on  October  tenth;  and  when  the  matter  came  up  on  that  day, 
the  Board  made  an  order  allowing  a  new  bond  to  be  filed,  and  continu- 
ing the  hearing  until  a  future  day.  A  bond  free  from  objection  was  filed, 
and  the  Board  then  proceeded  with  the  hearing.  We  think  that  this 
course  was  within  the  powder  of  the  Board.  No  time  is  fixed  for  the 
presentation  of  a  petition.  It  is  to  be  presented  at  a  regular  meeting 
pursuant  to  notice.  And  the  bond  "  must  accompany  the  petition." 
Neither  the  petition  nor  the  bond  need  be  filed  before  the  petition  is 
presented;  and  the  hearing  and  the  action  of  the  Board  in  the  matter 
may  be  at  the  same  meeting,  although  power  is  expressly  given  to 
adjourn  for  a  certain  time.  It  is  sufficient,  therefore,  if  the  bond  be 
given  on  the  day  of  ^he  hearing.  And  we  think  it  clear  that  there  was 
power  to  adjourn  the  hearing  so  as  to  allow  a  proper  bond  to  be  filed. 
Such  a  bond  may  be  said  to  "  accompany"  the  petition  in  the  sense  of 
the  statute.  Even  in  the  case  of  an  appeal  bond  it  is  held,  prior  to  the 
enactment  of  any  statute  on  the  subject,  that  where  a  bond  had  been 
given  which  was  defective  merely,  the  defects  could  be  cured  by  giving 
a  new  bond  in  the  Supreme  Court.  (See  cases  in  Hayne  on  New  Trial 
and  Appeal,  p.  651.) 

3.  It  is  objected  that  the  petition  was  not  presented  at  a  lawful  meet- 
ing of  the  Board.  The  Act  provides  that  the  petition  "  shall  be  pre- 
sented at  a  regular  meeting  of  said  Board."  A  similar  provision  is  in 
the  Municipal  Corporation  Act.  (Laws  1883,  p.  94.)  In  relation  to 
meetings  of  Boards  of  Supervisors,  the  County  Government  Act  has  the 
following:  "The  Board  of  Supervisors  must,  by  ordinance,  provide  for 
the  holding  of  regular  meetings  of  the  Board  at  their  respective  county 
seats."  In  pursuance  of  this  provision,  the  Board,  on  April  11,  1885, 
passed  an  ordinance  fixing  the  times  for  its  regular  meetings.  Meetings 
were  held  under  this  ordinance  for  nearly  two  years,  and  up  to  and 
including  the  presentation  of  the  petition.  The  objections  made  go  back 
to  the  validity  of  this  ordinance.  It  is  said  that  it  was  not  properly 
recorded  in  the  Ordinance  Book,  but  its  recording  in  that  book  has  been 
held  to  be  not  essential  to  its  validity.  (People  vs.  Cole,  70  Cal.  60.) 
It  is  further  said  that  the  vote  of  one  of  the  Supervisors  was  not  shown 
by  the  entry  in  the  minutes  or  by  the  publication.  But  the  meetings 
Avere  held  under  this  ordinance  for  a  long  period  as  and  for  regular 
meetings,  and  they  were  the  onh'  meetings  of  the  kind  which  were  held. 
And  we  do  not  think  that  the  question  of  their  regularity  can  have  any 


—  42  — 

such  far-reaching  and  collateral  effect  aa  to  render  abortive  all  the  public 
business  that  has  been  transacted  during  a  series  of  years. 

4.  It  is  contended  that  the  petition  was  not  published.  The  objec- 
tions in  this  regard  are  founded  on  slight  mistakes  in  the  spelling  of 
some  of  the  names,  which  are  entirely  unimportant,  and  of  certain 
defects  in  the  description,  which  are  disposed  of  by  what  is  said  under 
the  first  head. 

5.  It  is  urged  that  the  Board  had  no  power  to  modify  the  boundaries 
of  the  proposed  district  in  the  way  it  did.  What  the  Board  did  was,  in 
the  first  place,  to  include  in  the  district  certain  lands  not  included  by 
the  petition,  upon  the  verbal  request  of  the  owners;  and,  in  the  second 
place,  to  exclude  from  the  district  certain  lands  included  by  the  petition. 
The  provision  of  the  Act  under  which  this  was  done  is  as  follows: 

"  The  said  Board,  on  the  final  hearing,  may  make  such  changes  in  the 
proposed  boundaries  as  they  may  find  to  be  proper,  and  shall  establish 
and  define  such  boundaries;  provided,  that  said  Board  shall  not  modify 
such  boundaries  so  as  to  except  from  the  operation  of  this  Act  any 
territory  within  the  boundaries  of  the  district  proposed  by  said  peti- 
tioners which  is  susceptible  of  irrigation  by  the  same  system  of  works' 
applicable  to  the  other  lands  in  such  organized  district;  nor  shall  any 
lands  which  will  not,  in  the  judgment  of  said  Board,  be  benefited  by 
irrigation  by  said  system  be  included  within  such  district;  provided, 
that  any  person  whose  lands  are  susceptible  of  irrigation  from  the  same 
source  shall,  upon  application  of  the  owner  to  said  Board,  be  entitled  to 
have  such  lands  included  in  said  district."     (Sec.  2.) 

(a)  The  objection  to  the  inclusion  of  lands  not  embraced  in  the 
petition  is,  that  the  application  of  owners  (which  is  admitted  to  have 
iDcen  made)  was  not  in  writing.  But  although  it  would  be  more  satis- 
factory and  prudent  to  make  such  applications  in  writing,  we  see  nothing 
in  the  Act  which  requires  a  writing;  and  we  do  not  think  that  the  Court 
is  authorized  to  superadd  such  a  requirement. 

{h)  The  objection  to  the  exclusion  of  lands  from  the  proposed  bound- 
aries is  based  upon  the  proviso  that  "  said  Board  shall  not  modify  such 
boundaries  so  as  to  except  from  the  operation  of  this  Act  any  territory 
within  the  boundaries  of  the  district  proposed  by  said  petitioners  which 
is  susceptible  of  irrigation  by  the  same  system  of  works  applicable  to 
the  other  lands  in  such  organized  districts."  The  appellants  offered 
evidence  to  show  that  the  excluded  lands  were  in  fact  susceptible  of  irri- 
gation by  the  same  system  of  works  as  the  other  lands;  and  such  evi- 
dence was  excluded,  on  the  ground  that  the  judgment  of  the  Board  as 
to  the  matter  was  final.  We  think  that  this  ruling  was  right.  It  is  to 
be  observed  that  no  power  is  given  to  the  Board  to  include  lands  which 
are  not  included  by  the  petition,  except  upon  request  of  the  owners. 
And  with  reference  to  excluded  lands,  it  is  possible  (although  we  express 
no  opinion  upon  the  point)  that  the  owners  could,  upon  request  and  a 
proper  showing  in  some  appropriate  proceeding,  have  their  lands  rein- 
eluded.  But,  so  far  as  the  validity  of  the  organization  of  the  district  is 
concerned,  we  think  that  the  judgment  of  the  Board  cannot  be  contra- 
dicted as  is  attempted  here.  It  is  clear  that  this  would  be  so  in  the 
absence  of  the  proviso  quoted.  {People  vs.  Hager,  66  Cal.  60;  People 
vs.  Riverside,  70  Cal.  461.)  And,  from  the  nature  of  the  question,  we 
think  that  the  proviso  must  be  considered  merely  as  a  rule  for  the  guid- 
ance of  the  Board;  and  that,  so  far  as  the  validity  of  the  district  is  con- 


—  43  — 

cerned,  their  decision  is  as  conclusive  as  if  the  proviso  had  not  been 
inserted. 

It  is  objected  to  this  view,  however,  that  the  records  simply  show  what 
the  action  of  the  Board  was,  and  do  not  show  the  grounds  or  reasons 
upon  which  such  actions  proceeded;  or,  as  counsel  put  it,  that  there  was 
any  decision  of  the  Board  upon  the  question  of  the  application  of  the 
system  of  works  to  the  excluded  lands.  But  the  order  fixing  and  estab- 
lishing certain  boundaries,  excluding  certain  of  the  lands  included  by 
the  petition,  is  certainly  a  decision  as  to  where  the  boundaries  shall  be; 
and  there  is  nothing  in  the  Act  which  requires  the  Board  to  state  why 
it  fixes  the  boundaries  in  any  particular  place.  And  we  think  that  it 
may  be  safely  laid  down  as  a  general  proposition  that  the  reasons  or 
grounds  of  the  action  of  any  tribunal  or  body,  whether  legislative  or 
judicial,  need  not  be  stated  unless  the  law  expressly  so  requires.  It  is 
to  be  observed  that  there  is  a  clear  distinction  between  cases  of  the  state- 
ment of  the  reasons  or  grounds  of  the  action  which  a  tribunal  is  author- 
ized to  take,  and  cases  where  the  power  to  act  depends  upon  the  existence 
of  antecedent  conditions.  We  think  that  this  case  belongs  to  the  former 
class. 

6.  It  is  objected  that  the  proclamation  for  the  election  on  the  ques- 
tion of  the  organization  of  the  district  was  not  published  as  required 
by  the  Act.  The  objection  is  based  partly  on  small  inaccuracies  in  the 
description,  which  have  been  already  considered,  partly  on  unimportant 
mistakes  in  the  spelling  of  names,  and  partly  on  the  alleged  ground 
that  the  proclamation  was  not  published  for  "three  weeks  prior  to  the 
election."  These  words,  we  think,  simply  indicate  the  time  during 
which  the  notice  is  to  be  published,  and  not  the  manner  of  the  publication. 
{In  re  Cunningham,  73  Cal.  558,  559.)  And  nothing  being  said  about 
the  number  of  publications,  we  think  that  this  matter  was  left  to  the 
discretion  of  the  Board.  The  Board  ordered  that  the  publication  be 
made  in  a  weekly  newspaper  "as  often  (or  for  four  insertions)  as  the 
same  may  be  published  between  this  date  and  the  said  day  of  election." 
This  order  was  made  on  October  twenty-eighth.  The  election  was  on 
November  twenty-second,  and  the  proclamation  was  published  on 
October  twenty-ninth,  and  on  the  fifth,  twelfth,  and  nineteenth  of 
November.     This,  we  think,  was  sufficient. 

7.  It  is  said  that  the  voting  precincts  were  established  less  than  thirty 
days  before  the  election.  The  Irrigation  Act  does  not  say  in  terms  when 
the  voting  precincts  shall  be  established.  It  says,  however,  that  "  such 
election  shall  be  conducted  in  accordance  with  the  general  election  laws 
of  the  State."  And  by  the  general  election  laws  the  voting  precincts 
must  not  be  established  less  than  thirty  days  before  the  election. 

We  are  inclined  to  question  whether  the  "conducting"  of  an  election 
necessarily  includes  something  which  cannot  take  place  within  thirty 
days  before  the  election  day.  But  assuming  that  it  does,  the  evident 
meaning  is,  that  the  election  shall  be  conducted  in  accordance  with  the 
general  laws,  except  as  otherwise  provided  in  the  Act  itself.  The  Act 
provides  that  "  for  the  purposes  of  the  election  above  provided  for,  the 
said  Board  of  Supervisors  must  establish  a  convenient  number  of  election 
precincts  in  said  proposed  district,  and  define  the  boundaries  thereof, 
which  said  precincts  may  thereafter  be  changed  by  the  Board  of  Directors 
of  such  district."  (Sec.  3.)  This  provision  does  not  say  when  the  pre- 
cincts are  to  be  established.     But  we  think  it  cannot  be  the  meaning  that 


—  44  — 

the  Board  is  to  establish  them  thirty  days  before  the  election.  For  the 
notice  of  election  is  to  be,  or  at  least  may  be,  given  at  the  time  the  order 
establishing  the  boundaries  of  the  district  is  made  (Sec.  3);  and  only 
three  weeks'  publication  of  the  same  is  required.  Hence,  the  election 
may  take  place  within  less  than  thirty  days  from  the  time  when  it  is 
first  known  where  the  boundaries  of  the  district  are  to  be.  Consequently, 
the  argument  made  would  require  the  voting  precincts  to  be  established 
before  it  was  known  where  the  district  was  to  be  or  what  it  was  to 
include.  No  such  absurd  construction  will  be  adopted.  The  time  for 
the  establishment  of  the  precincts  seems  to  be  left  to  the  discretion  of  the 
Board.  They  were  established  by  the  election  proclamation,  which  was 
published  for  at  least  three  weeks,  and  this  we  think  was  sufficient. 

8.  It  was  finally  objected  that  the  bonds  were  not  in  proper  form. 
The  provision  of  the  Act  is  as  follows: 

"  Said  bonds  shall  be  payable  in  gold  coin  of  the  United  States,  in 
installments,  as  follows,  to  wit:  At  the  expiration  of  eleven  years,  not 
less  than  five  per  cent  of  said  bonds;  at  the  expiration  of  twelve  years, 
not  less  than  six  per  cent;  at  the  expiration  of  thirteen  years,  not  less 
than  seven  per  cent;  at  the  expiration  of  fourteen  years,  not  less  than' 
eight  per  cent;  at  the  expiration  of  fifteen  years,  not  less  than  nine  per 
cent;  at  the  expiration  of  sixteen  years,  not  less  than  ten  per  cent;  at 
the  expiration  of  seventeen  years,  not  less  than  eleven  per  cent;  at  the 
expiration  of  eighteen  years,  not  less  than  thirteen  per  cent;  at  the 
expiration  of  nineteen  years,  not  less  than  fifteen  per  cent;  and  for  the 
twentieth  year  a  percentage  sufficient  to  pay  off"  said  bonds."    (Sec.  15.) 

The  bonds  here  involved  were  drawn  so  as  to  make  each  one  payable 
in  installments.  And  the  objection  is,  that  a  proper  construction  of 
the  Act  requires  that  a  certain  number  of  bonds  should  be  payable 
in  eleven  years,  a  further  number  in  twelve  years,  and  so  on.  We 
think,  however,  that  the  bonds  were  in  proper  form.  The  phrase, 
"A  bond  payable  in  installments,"  is  clear,  and  can  only  mean  one 
thing.  Is  the  meaning  changed  by  putting  it  in  the  plural,  and  making 
it  "bonds  payable  in  installments?"  But  there  are  other  provisions  of 
the  Act  which  make  the  intention  clear.  The  sixteenth  section  pro- 
vides "  that  the  Board  may  sell  said  bonds  from  time  to  time  in  such 
quantities  as  may  he  necessary  and  most  advantageous,^^  etc.  It  may 
happen,  therefore,  that  only  a  portion  of  the  bonds  are  sold.  Now,  for 
illustration,  we  will  suppose  that  the  bonds  were  issued  on  appellant's 
theory,  and  that  only  those  payable  at  the  end  of  eleven  years  are  sold. 
In  such  case  the  only  bonds  outstanding  would  be  the  eleven-year  bonds; 
for  a  bond  which  has  not  been  sold,  or  in  other  words,  not  issued,  cannot 
be  said  to  be  "outstanding."  The  whole  amount  of  the  principal  of 
such  bonds  would  be  due  and  payable  at  the  end  of  eleven  years.  How 
would  it  be  paid?  The  twenty-second  section  provides,  in  substance, 
that  at  the  expiration  of  the  tenth  year  the  Board  of  Directors  shall 
make  an  assessment  "  in  the  following  percentage  of  the  principal  of 
the  whole  amount  of  bonds  then  outstanding,  to  wit:  for  the  eleventh 
year,  five  per  cent,"  etc.  This  is  the  only  provision  for  raising  money 
to  pay  the  principal  of  said  bonds.  It  would,  therefore,  result,  uppn  the 
appellant's  theory,  that,  although  the  whole  amount  of  the  principal  of 
the  eleven-year  bonds  would  be  due  and  payable,  only  five  per  cent 
thereof  could  be  paid.  And  similar  results  would  follow  as  to  the 
others;  while,  as  the  bonds  were  drawn,  five  per  cent  of  the  whole 


—  45  — 

amount  of  the  principal  of  the  bonds  "  then  outstanding "  would  be 
sufficient  to  pay  off"  each  installment  of  the  principal  as  it  became  due. 
It  may  be  thaf  the  Legislature  supposed  that  there  was  a  good  reason 
for  making  each  bond  run  in  part  for  the  whole  twenty  years. 

As  is  well  known,  a  bond  for  a  long  term  is  more  salable  (other  things 
being  equal)  than  a  bond  for  a  short  term.  And  the  object  may  have 
been  to  help  the  sale  of  the  short  bonds  by  incorporating  them  with  the 
long  ones.  However  this  may  be,  Ave  think  that  the  intention  to  have 
the  bonds  drawn  as  the  respondent  has  drawn  them  is  sufficiently 
expressed. 

The  other  matters  do  not  require  special  notice.  We  therefore  advise 
the  judgment  appealed  from  be  affirmed. 

FooTE,  C,  concurring. 

Belcher,  C.  C,  being  disqualified,  took  no  part  in  this  decision. 

The  Court:  For  the  reasons  given  in  the  foregoing  opinion,  the  judg- 
ment is  affirmed. 


[No.  14038.] 

HENRY  J.  CRALL,  Appellant,  vs.  BOARD  OF  DIRECTORS  OF  THE 
POSO  IRRIGATION  DISTRICT,  Respondent. 

[87  Cal.  140.] 

Irrigation  Districts. — Act  of  March  7,  1887,  providingfor  organization  and  government 

of  irrigation  districts  is  constitutional. 
Irrigation  Districts  formed  under  Act  of  March  7,  1887,  are  public  corporations. 

Notice  by  Publication  or  posting  of  petition  for  confirmation  of  the  proceedings  of  the 
Board  of  Directors  of  an  irrigation  district  is  sufficient  to  give  the  Court  jurisdic- 
tion, and  personal  notice  to  members  of  the  district  is  unnecessary. 

Judgment  of  Confirmation  of  the  proceedings  of  Board  of  Directors  of  an  irrigation 
district,  based  upon  a  notice  by  publication  of  a  petition  for  confirmation,  is  conclu- 
sive and  binding  upon  members  of  the  district  and  all  the  workl  until  reversed  on 
appeal  or  set  aside  m  some  direct  proceeding  instituted  for  that  purpose. 

Appeal  from  a  judgment  of  the  Superior  Court  of  Stanislaus  County. 

The  facts  necessary  to  an  understanding  of  the  case  are  so  clearly 
stated  in  the  opinion  of  the  Court  that  any  further  recital  of  them  is 
unnecessary. 

L.  J.  Maddux,  for  the  appellant,  contended: 

1.  That  the  demurrer  to  the  answer  should  have  been  sustained;  that 
a  judgment  of  confirmation  did  not  bar  one  who  did  not  appear  therein; 
that  the  plaintiff'  was  entitled  to  attack  the  petition  of  the  Board  of 
Supervisors  for  the  organization  of  the  district;  that  a  proper  petition 
was  essential  to  jurisdiction.  {Mulligan  vs.  Smith,  59  Cal.  206;  Licb- 
man  vs.  The  City,  11  Sawyer,  147;  Ziegler  vs.  Hopkins,  117  U.  S.  683.) 

2.  That  the  plaintiff"  was  not  served  with  process  in  the  confirmation, 
did  not  have  due  process  of  law.  The  only  notice  plaintiff"  had  was  the 
publication  in  the  paper;  that  a  personal  notice  was  essential.  {Pen- 
noyer  vs.  Neff,  95  U.  S.  714;  Stuart  vs.  Palmer,  74  N.  Y.  191;  Taylor  vs. 
Porter,  4  Hill,  146;  Westivelt  vs.  Gregg,  2  Kern,  209;  PowelVs  Appeal, 
29  Mich.  376;  State  vs.  Fond  du  Lac,  42  Wis.  298.) 


—  46  — 

Wright  &  Hazen  and  A.  L.  Rhodes,  for  the  respondent,  argued: 

1.  That  the  Court  had  jurisdiction  of  the  subject-matter  of  the  special 
proceeding;  that  the  Legislature  could  grant  and  the  Superior  Court 
could  exercise  jurisdiction  in  this  proceeding  of  all  the  matters  expressly 
granted  to  it  by  the  Confirmation  Act.     {Lent  vs.  Tillso'ii,  72  Cal.  404.) 

2.  That  the  Court  acquired  jurisdiction  of  the  plaintiff  in  this  case; 
that  notice  may  be  given  by  publication  and  posting,  and  the  Court 
acquires  jurisdiction  so  as  to  be  able  to  adjudge  that  the  proceedings 
were  legal  and  valid.  {Davidson  vs.  New  Orleans,  96  U.  S.  104;  Riley 
vs.  Lancaster,  39  Cal.  354;  Eitel  vs.  Foote,  39  Cal.  440;  Mayo  vs.  Faley, 
40  Cal.  282;  State  vs.  McGlynn,  20  Cal.  233;  Irwin  vs.  Scriber,  18  Cal. 
499;  Boyd  vs.  Blankmann,  29  Cal.  19;  Halleck  vs.  Moss,  22  Cal.  266; 
People  vs.  Hager,  52  Cal.  171;  Barrett  vs.  Carney,  33  Cal.  536;  Fried- 
lander  vs.  Loucks,  34  Cal.  23.) 

3.  That  the  judgment  in  the  special  proceedings  is  final  and  con- 
clusive against  all  jjersons  interested  in  the  district  or  its  bunds.  {Lent 
vs.  Tillson,  72  Cal.  404;  San  Francisco  vs.  Certain  Real  Estate,  42  Cal. 
519.) 

By  Belcher,  C.  C: 

An  irrigation  district,  known  as  the  Poso  Irrigation  District,  was 
organized  by  the  Board  of  Supervisors  of  Kern  County,  under  the  Act 
passed  by  the  Legislature  of  this  State  and  commonly  called  the  Wright 
Act.  (Stats.  1887,  p.  29.)  A  Board  of  Directors  for  the  district  was 
elected,  and  the  members  qualified  and  entered  upon  the  discharge  of 
their  duties.  In  jjerformance  of  the  duties  prescribed  by  the  Act,  the 
Board  estimated  and  determined  that  the  amount  of  $500,000  was  neces- 
sary to  be  raised  for  the  purpose  of  constructing  necessary  irrigating 
canals  and  works,  and  acquiring  the  necessary  property  and  rights  there- 
for, and  otherwise  carrying  out  the  provisions  of  the  Act.  Thereupon, 
the  Board  called  a  special  election,  to  be  held  on  a  day  named,  at  which 
was  submitted  to  the  qualified  electors  of  the  district  the  question 
whether  or  not  the  bonds  of  the  district  should  be  issued  in  the  amount 
so  determined.  Notice  of  the  election  was  given  and  published  in  the 
manner  and  for  the  time  prescribed  by  the  Act,  and  the  election  was 
held  pursuant  to  the  call.  When  the  returns  of  the  election  were  can- 
vassed, it  was  found  and  determined  that  a  majority  of  the  votes  cast 
were  in  favor  of  the  issuance  of  the  bonds,  and  thereupon  the  Board 
ordered  that  bonds  of  the  district,  to  the  amount  of  $500,000,  be  imme- 
diately prepared  and  issued  in  the  manner  and  form  provided  by  the 
Act.  Subsequently  the  Board  made  another  order  that  the  bonds,  to 
the  amount  of  $200,000,  be  offered  for  sale. 

All  of  the  foregoing  proceedings  were  apparently  regular,  and  in  com- 
pliance with  the  provisions  of  the  AVright  Act. 

After  the  entry  of  the  order  for  the  sale  of  the  bonds,  the  Board  of 
Directors,  under  the  Act  supplemental  to  the  Wright  Act,  "  and  to  pro- 
vide for  the  examination,  approval,  and  confirmation  of  proceedings  for 
the  issue  and  sale  of  bonds  issued  under  the  provisions  of  said  Act " 
(Stats.  1889,  p.  212),  commenced  a  special  proceeding  in  the  Superior 
Court  of  Kern  County  for  the  purpose  of  having  all  the  proceedings  for 
the  organization  of  the  district  and  the  issue  of  the  bonds  judicially 
examined,  approved,  and  confirmed.     A  petition  for  confirmation,  in 


—  47  — 

due  form,  was  filed,  and  thereupon  the  Court  fixed  a  day  for  the  hearing 
of  the  petition,  and  ordered  notice  to  be  given  and  published  for  the 
time  and  in  the  manner  prescribed  by  the  Act;  and  in  pursuance  of 
this  order  notice  in  proper  form  was  duly  given  and  published. 

At  the  time  appointed  the  matter  was  heard  upon  oral  and  docu- 
mentary evidence,  and  thereafter  the  Court  filed  its  findings  of  fact  and 
conclusions  of  law  and  entered  its  judgment,  approving  and  confirming 
all  of  the  proceedings  for  the  organization  of  the  district  and  for  the 
issue  of  bonds;  and  it  "further  ordered,  adjudged,  and  decreed  that 
the  said  Poso  Irrigation  District,  ever  since  its  organization  as  aforesaid, 
has  been,  and  now  is,  a  duly  and  legally  organized  irrigation  district, 
and  that  it  possesses  full  power  and  authorit}^  to  issue  and  sell,  from 
time  to  time,  the  bonds  of  said  district,  to  the  amount  of  $500,000." 

The  plaintiff  herein  did  not  appear  in  the  confirmation  proceedings, 
but  after  the  entry  of  the  judgment  of  confirmation  he  commenced  this 
action  to  obtain  a  decree  enjoining  the  sale  of  the  bonds. 

For  the  purpose  of  showing  that  the  plaintifi'  is  a  proper  party  to 
bring  the  action,  the  complaint  alleges  that  he  is  the  owner  of  lands 
within  the  district,  and  that  they  will  be  subject  to  assessment  to  raise 
money  to  pay  the  bonds,  if  they  should  be  sold.  It  then,  after  stating 
facts  sufficient  to  show  that  there  was,  in  form,  a  regular  organization 
of  the  district,  and  an  apparent  compliance  with  the  provisions  of  the 
statute  for  the  issue  of  bonds,  proceeds  to  allege  that  the  Board  of 
Directors  has  no  power  to  issue  or  sell  the  bonds,  because: 

First — The  petition  which  was  presented  to  the  Board  of  Supervisors 
for  the  organization  of  the  district  was  not,  in  truth,  signed  by  fifty  free- 
holders, nor  by  a  majority  of  the  freeholders,  then  or  at  any  time  own- 
ing land  within  the  proposed  district,  and  that  not  more  than  thirty  of 
the  persons  whose  names  purport  to  have  been  signed  to  the  petition 
ever  were  freeholders  within  the  district. 

Second — The  notice  df  the  time  and  place,  when  and  where  the  election 
for  the  organization  of  the  district  would  be  held,  was  not  in  fact  pub- 
lished for  the  full  period  prescribed  by  law. 

Third — The  lands  of  plaintiff  were  not  susceptible  of  irrigation  by  the 
same  system  of  works  applicable  to  the  other  lands  of  the  district,  and 
they  would  not  be  benefited  by  irrigation  thereby. 

Fourth — The  notice  of  the  special  election  upon  the  question  whether 
bonds  should  be  issued  was  not  published  nor  posted  for  the  full  period 
j^rescribed  by  law. 

Fifth — The  Board  of  Directors  wrongfully  and  unlawfully  estimated 
and  determined  that  it  was  necessary  to  raise  $500,000  for  the  purposes 
of  the  district,  when  in  fact  it  was  necessary  to  raise  only  $200,000  for 
those  purposes. 

The  answer  of  the  defendant  sets  up  the  judgment  of-  confirmation  in 
bar  of  the  action,  and  is,  in  effect,  that  the  matters  of  irregularity  and 
illegality  stated  in  the  complaint  were  conclusively  determined  hj  that 
judgment.  To  the  answer  the  plaintift'  filed  a  general  demurrer,  and 
thereupon,  the  vital  question  in  the  case  being  whether  the  plaintifi'  was 
estopped  by  the  judgment  of  confirmation,  the  parties  stipulated  that 
final  judgment  should  be  rendered  in  accordance  with  the  decision  upon 
the  demurrer.  The  Court  overruled  the  demurrer  and  rendered  judg- 
ment for  the  defendant.     From  that  judgment  the  plaintiff  appeals. 

There  can  no  longer  be  any  question  that  the  Wright  Act  is  consti- 


-  48  — 

tutional,  and  that  irrigation  districts  organized  under  its  provisions, 
like  reclamation  districts,  are  public  corporations.  {TurlocJc  Irrigation 
District  vs.  Williams,  76  Cal.  360;  Central  Irrigation  District  vs.  De  Lappe, 
79  Cal.  351.)  The  districts  are  authorized  to  construct  irrigation  works, 
and  to  that  end  to  issue  bonds  bearing  interest  at  the  rate  of  six  per 
cent  per  annum,  the  interest  payable  semi-annually,  and  the  principal 
in  installments  extending  over  twenty  years.  These  bonds  are,  from 
time  to  time,  to  be  offered  for  sale,  and  to  be  sold  to  the  highest  responsi- 
ble bidder,  provided  that  not  less  than  ninety  per  cent  of  their  face  value 
shall  be  accepted.  And  they  are  to  be  paid,  interest  and  principal,  by 
revenue  derived  from  an  annual  assessment  upon  the  real  property  of 
the  district. 

It  is  a  matter  of  every  day  observation  that  bonds  bearing  such  a  rate 
of  interest,  and  about  whose  validity  and  payment  at  maturity  there  is 
no  question,  can  be  readily  sold  for  considerable  more  than  their  face 
value,  while  bonds  which  are  liable  to  be  assailed  and  questioned,  years 
after  their  issue,  by  any  one  who  is  required  to  contribute  to  their  pay- 
ment, are  reluctantly  taken  at  any  price.  It  was  doubtless  for  the  pur- 
pose of  settling  all  these  matters  in  advance,  and  thereby  making  the. 
bonds  of  irrigation  districts  more  readily  salable,  and  at  better  prices 
than  they  would  otherwise  command,  that  the  Legislature  passed  the 
Confirmation  Act,  providing  that  the  district  might,  before  offering  any 
of  their  bonds  for  sale,  have  all  questions  affecting  their  validity  judi- 
cially and  finally  determined. 

The  confirmation  proceeding  is  denominated  in  the  Act  a  special  pro- 
ceeding, and  it  is  clearly  in  the  nature  of  a  proceeding  in  rem,  the 
object  being  to  determine  the  status  of  the  district  and  its  power  to  issue 
valid  bonds.     The  fifth  section  of  the  Act  is  as  follows: 

"  Upon  the  hearing  of  such  special  proceeding,  the  Court  shall  have 
power  and  jurisdiction  to  examine  and  determine  the  legality  and  va- 
lidity of,  and  approve  and  confirm,  each  and  all  of  the  proceedings  for 
the  organization  of  said  district  under  the  provisions  of  the  said  Act 
(Wright  Act),  from  and  including  the  petition  for  the  organization  of 
the  district,  and  all  other  proceedings  which  may  affect  the  legality  or 
validity  of  said  bonds,  and  the  order  for  the  sale,  and  the  sale  thereof." 
(Stats.  1889,  p.  212.) 

That  the  Legislature  had  power  to  pass  an  Act  to  accomplish  the  pur- 
poses intended  by  this  Act  cannot  be  questioned.  Nor  is  it  pretended 
that  the  appellant  did  not  have  notice  of  the  confirmation  proceedings, 
or  that  he  was  in  any  way  or  for  any  reason  prevented  from  appearing 
therein  and  raising  all  the  objections  which  he  now  seeks  to  raise. 
The  contention  is  simply  that  no  process,  issued  in  those  proceedings, 
was  served  on  him  personally,  and  hence  that  he  was  not  obliged  to 
appear,  and  his  rights  are  not  barred  by  the  judgment,  but  he  is  at  lib- 
erty now  to  make  "  any  attack  upon  the  proceedings  for  the  issue  of 
bonds,  including  the  proceedings  for  the  organization  of  the  district,  that 
he  could  have  made  had  there  been  no  judgment  of  confirmation."  To 
hold  otherwise,  it  is  claimed,  would  have  the  effect  of  depriving  him  of 
his  property  without  due  process  of  law. 

It  will  be  observed  that  the  question  is  not  whether  the  valuation  of 
the  land  for  the  purposes  of  assessment  can  be  made  and  definitely  fixed 
without  further  notice  to  the  land  owner,  nor  whether  the  assessment 
can  be  collected  without  further  notice;  but  it  is  simply  whether  the 


—  49  — 

notice  by  publication  and  posting  was  sufficient  to  give  the  Court  juris- 
diction to  determine  that  the  proceedings  taken  for  the  organization  and 
on  behalf  of  the  district  were  such  as  will  enable  the  district  to  create 
a  valid  debt  to  be  paid  by  the  levy  of  assessments  in  the  manner  pro- 
vided by  the  Wright  Act. 

In  our  opinion  the  contention  of  appellant  cannot  be  sustained.  It 
-was  not  necessary,  we  think,  that  personal  service  be  made  upon  all  or 
any  of  the  land  owners  of  the  district  in  order  to  give  the  Court  juris- 
diction and  power  to  render  a  judgment,  valid  and  binding  as  against 
them  and  all  the  world,  upon  all  the  questions  involved  in  the  case. 
And  this  view  seems  to  be  well  supported  by  the  authorities. 

In  Pennoyer  vs.  Neff,  95  U.  S.  727,  a  case  largely  relied  on  by  appel- 
lant, the  Supreme  Court  of  the  United  States  held,  that  where  the  entire 
object  of  the  action  is  to  determine  the  personal  rights  and  obligations 
of  the  defendants,  that  is,  where  the  suit  is  merely  in  personam,  con- 
structive service  by  publication  upon  a  non-resident  of  the  State  is  suffi- 
cient for  any  purpose,  and  at  the  same  time  declared  that  "  such  service 
may  answer  in  all  actions  which  are  substantially  proceedings  in  rem.'' 

In  this  State,  constructive  notice,  given  in  such  a  way  as  is  provided  by 
statute,  of  proceedings  for  the  probate  of  wills  and  of  all  proceedings  in 
the  administration  of  estates  of  decedents,  has  always  been  regarded 
as  sufficient.  In  State  vs.  McGlynn,  20  Cal.  233,  it  was  held  that  the 
probating  of  a  will  was  a  proceeding  in  rem,  and  that  the  decree  admit- 
ting a  will  to  probate  was  conclusive,  not  only  upon  the  parties  who 
were  before  the  Court,  but  upon  all  other  persons.  In  its  opinion  the 
Court  quotes  the  following  language,  used  by  the  Supreme  Court  of 
Vermont  in  Woodruff  yb.  Taylor,  20  Vt.  65:  "The  probate  of  a  will  I 
conceive  to  be  a  familiar  instance  of  a  proceeding  in  rem  in  this  State. 
The  proceeding  is  in  form  and  substance  upon  the  will  itself.  No  pro- 
cess is  issued  against  any  one,  but  all  persons  interested  in  determining 
the  state  or  condition  of  the  instrument  are  constructively  notified,  by 
a  newspaper  publication,  to  appear  and  contest  the  probate;  and  the 
judgment  is,  not  that  this  or  that  person  shall  pay  a  sum  of  money  or 
do  any  particular  act,  but  that  the  instrument  is  or  is  not  the  will  of 
the  te"stator;  it  determines  the  stat^ls  of  the  subject-matter  of  the  pro- 
ceeding. The  judgment  is  upon  the  thing  itself,  and  when  the  proper 
steps  required  by  law  are  taken,  the  judgment  is  conclusive,  and  makes 
the  instrument,  as  to  all  the  world  (at  least  so  far  as  the  property  of  the 
testator  within  this  State  is  concerned),  just  what  the  judgment  declares 
it  to  be."  (See,  also.  In  matter  of  the  will  of  Warfiehl,  22  Cal.  51; 
Rogers  vs.  King,  22  Cal.  72;  Halleck  vs.  Moss,  22  Cal.  266;  Irwin  vs. 
Scriher,  18  Cal."  500.) 

So  in  an  action  brought  against  the  land  and  all  owners  and  claim- 
ants, known  and  unknown,  to  recover  a  street  assessment,  it  has  been 
held  that  constructive  service  of  process  may  be  sufficient  t«  authorize 
the  Court  to  render  a  judgment  which  is  conclusive  and  binding  upon 
all  the  world,  until  reversed  on  appeal  or  set  aside  by  some  direct  pro- 
ceeding brought  for  that  purpose.  (Mayo  vs.  Ah  Loy,  32  Cal.  477; 
Peo'ple  vs.  Doe,  G.  1,034,  36  Cal.  220;  Eitel  vs.  Foote,  39  Cal.  439. )_ 

So,  too,  in  insolvency  proceedings,  it  has  been  held  that  notice  by 
publication  is  sufficient  to  give  the  Court  jurisdiction  over  the  subject- 
matter  and  the  parties.     {Bennett  vs.  His  Creditors,  22  Cal.  38;  Fried- 
lander  vs.  Loucks,  34  Cal.  18;  Arnold  vs.  Kahn,  67  Cal.  472.) 
4w 


—  50  — 

Many  other  analogous  cases  might  be  cited,  but  we  think  the  above 
sufficient. 

The  decision  in  Mulligan  vs.  Smith,  59  Cal.  206,  cited  by  appellant,  is 
not  in  conflict  with  what  has  been  said.  That  case  was  ejectment  to 
recover  possession  of  a  lot  of  land,  which  had  been  sold  to  pay  an 
assessment  under  the  Montgomery  Avenue  Act.  The  Act  required  that 
a  petition,  signed  by  a  majority  of  the  owners  in  frontage  of  the  prop- 
erty to  be  charged  with  the  costs  of  the  improvement,  be  presented  to 
the  Mayor;  that  a  Board  of  Public  Works  be  then  organized,  and  that 
it  make  a  report  showing  the  benefits  and  damages  resulting  from  the 
improvement  to  each  piece  of  property  within  the  district  to  be  assessed; 
and  that  the  report  be  presented  to  the  County  Court  for  approval  and 
confirmation. 

This  Court,  on  page  231,  said:  "In  no  part  of  the  statute  does  it 
appear  that  any  provisions  were  made  for  any  notice  to  be  given  to 
property  owners  of  the  proceedings  authorized  to  be  taken  before  the 
Mayor,  or  of  the  proceedings  by  the  Board  of  Public  Works,  or  in  the 
County  Court,  against  the  property  declared  to  be  benefited  by  the  opening 
of  the  avenue.  No  personal  notice  was  in  fact  given  to  the  defendant' 
of  the  presentation  of  the  petition  or  of  any  of  the  acts  of  the  Board. 
Neither  the  Mayor  nor  the  Board  was  required  to  give  notice  until  the 
Board  had  completed  the  report  of  its  work.  Then  the  statute  required 
it  to  publish  a  notice  for  twenty  days,  in  two  daily  newspapers  printed 
and  published  in  the  City  and  County  of  San  Francisco,  that  the  report 
w^ould  be  open  for  the  inspection  of  all  parties  interested,  at  the  office  of 
the  Board,  every  day  during  ordinary  business  hours,  for  thirty  days. 

And  again,  on  page  232:  "  Nowhere  in  the  statute  is  the  petition  made 
part  of  the  report,  or  of  the  data  or  documents  used  in  making  it.  Nor 
is  it  anywhere  required  that  the  Board  or  the  Mayor  shall  return  it  to 
the  Court,  or  file  it  there  or  elsewhere.  The  Court  had,  therefore,  no 
jurisdiction  of  the  petition — no  power  to  adjudge  upon  its  sufficiency 
and  validity  so  as  to  conclude  the  defendant.  And  in  adjudicating 
upon  the  report  itself  the  Court  acquired  no  jurisdiction  of  the  person 
or  property  of  the  defendant,  so  as  to  determine  his  rights.  Both,  it  is 
true,  were  within  the  territorial  limits  of  the  jurisdiction  of  the  Court, 
but  no  actual  or  substituted  process  of  law  had  been  served  upon  one  or 
the  other." 

It  was  accordingly  held  that  the  Court  below  rightly  admitted  evi- 
dence to  show  that  the  petition  was  not  signed  by  the  owners  of  a 
majority  in  frontage  of  the  lands  assessable  for  the  opening  of  the 
avenue. 

On  the  other  hand,  our  attention  is  called  to  Lent  vs.  Tillson,  72  Cal. 
404,  in  which  was  involved  the  validity  of  the  proceedings  taken  for  the 
widening  of  Dupont  Street,  in  the  City  and  County  of  San  Francisco, 
under  the  provisions  of  an  Act  passed  for  that  purpose.  It  was  held, 
in  an  able  and  elaborate  opinion  by  Mr.  Justice  Temple,  that  notice  by 
publication,  as  required  by  the  Act,  was  sufficient  to  constitute  due 
process  of  law,  by  which  all  persons  whose  rights  were  affected  by  the 
proceedings  had  before  the  County  Court  were  brought  into  Court,  and 
was  sufficient  from  that  time  on  to  charge  them  with  notice  of  every- 
thing done,  and  to  uphold  the  final  order  of  the  Court. 

We  conclude  that  the  Court  below  had  jurisdiction  in  the  confirmation 
proceedings  of  the  subject-matter  and  the  parties,  and  that  its  judgment 


—  51  — 

is  conclusive  and  binding  upon  the  defendant  and  all  the  world  until 
reversed  on  appeal,  or  set  aside  by  some  direct  proceeding  instituted  for 
that  purpose. 

We  therefore  advise  that  the  judgment  be  affirmed. 

Vanclief,  C,  and  Hayne,  C,  concurred. 

By  the  Court: 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is  affirmed. 


[No.  13988.] 

BOARD  OF  DIRECTORS  OF  THE  MODESTO  IRRIGATION  DIS- 
TRICT vs.  TREGEA. 

[Filed  March  19,  1891.    88  Cal.] 

Notice  of  Petition  to  confirm  acts  of  Board  of  Irrigation  Directors  in  issning  bonds 
need  not  be  personal  to  every  person  interested  in  the  district,  but  may  be  by  general 
notice  by  publication  in  some  form. 

Notice  of  Petition  to  confirm  acts  of  Board  of  Irrigation  Directors  in  issuing  bonds, 
provided  for  in  Section  3  of  Act  of  March  16,  1889,  is  sufiicient. 

Notice  of  Petition  to  confirm  acts  of  Board  of  Irrigation  Directors  in  issuing  bonds 
need  not  state  the  prayer  of  the  petition. 

Notice  of  Petition  to  confirm  acts  of  Board  of  Irrigation  Directors  in  issuing  bonds  is 
sufficient  if  it  contains  everything  necessary  to  a  substantial  compliance  with  the 
statute. 

Proceedings  not  set  out  in  petition  on  file  for  the  confirmation  of  the  acts  of  an  Irriga- 
tion Board  in  issuing  bonds  cannot  be  confirmed  where  the  original  petition  was 
amended  and  no  new  notice  of  the  amended  petition  was  published;  that  the  person 
contesting  the  petition  had  notice  of  the  amended  petition  is  not  sufiicient. 

Decree  Confirming  all  orders  alleged  in  the  original  and  amended  petitions  to  confirm 
acts  of  a  Board  of  Irrigation  Directors  in  issuing  bonds  is  not  void  for  want  of  juris- 
diction as  to  the  orders  set  out  in  the  original  petition,  merely  because  no  now  notice 
has  been  given  of  the  filing  of  the  amended  petition;  therefore,  where  the  original 
petition  alleges  orders  and  resolutions  directing  the  issuance  of  bonds  to  the  extent 
of  $400,000,  and  the  amended  petition  alleged  orders  for  the  issuance  of  |800,000  worth 
of  bonds,  and  no  new  notice  of  the  amended  petition  is  filed,  a  decree  confirming 
the  proceedings  of  the  Board  will  be  upheld,  so  far  as  it  confirms  the  issuance  of  the 
1400,000  worth  of  bonds. 

Land  of  City  or  Town  may  be  included  within  an  irrigation  district  in  a  proper  case. 
This  power  is  not  affected  by  the  fact  that  there  are  portions  of  the  city  or  town  not 
directly  benefited. 

Including  a  Town  within  an  irrigation  district  is  a  question  whose  decision  has  been 
committed  to  the  several  Boards  of  Supervisors,  and  their  discretion  is  not  subject  to 
the  control  of  any  Court. 

Evidence  that  lots  in  a  city  included  in  an  irrigation  district  were  not  benefited,  is  not 
competent  in  a  petition  to  confirm  the  proceedings  of  the  Board  of  Directors  in  issu- 
ing bonds. 

Evidence  that  city  was  included  in  irrigation  district  for  the  purpose  of  carrying  out  the 
scheme  of  organization  against  the  wishes  of  the  farmers  outside  the  city,  is  not  com- 
petent in  a  petition  to  coniirm  the  jn-ocoedings  of  the  Board  in  issuing  bonds,  unless 
the  facts  constituting  the  fraud  have  been  fully  pleaded. 

Confirmation  of  Acts  of  Directors  of  irrigation  district  in  issuing  bonds  will  not  be 
refused  because  after  the  resolution  to  issue  the  bonds  the  Board  had  ordered  a  por- 
tion of  the  district  to  be  included,  when  at  the  time  none  of  the  bonds  had  issued, 
and  there  was  no  contract  for  their  issuance. 

Refusal  of  Trial  de  novo  on  filing  amended  i)ctition  for  confirmation  of  the  proceed- 
ings of  Board  of  Irrigation  Directors  in  issuing  bonds  is  not  error  where  ail  the  evi- 
dence that  was  taken  was  applicable  to  the  issues  formed  by  the  amended  petition. 


—  52  — 

Notice  of  Election  for  issuance  of  bonds,  required  by  Section  5  of  Act  of  March  7,, 
1887,  need  not  be  given  on  a  special  election  held  under  Section  15  of  that  Act. 

Petition  to  Confirm  proceedings  of  Board  of  Irrigation  Directors  will  lie  as  soon  as. 
any  resolution  has  been  adopted  for  the  issue  and  sale  of  bonds,  and  it  is  not  neces- 
sary to  wait  until  the  bonds  have  been  actually  issued. 

Exclusion  of  Part  of  Irrigation  District  does  not  terminate  the  authority  given  to 
the  Directors  to  issue  bonds,  where,  at  the  time  of  the  exclusion,  the  district  had 
no  debt,  and  no  objection  was  made  to  such  exclusion  by  any  person. 

This  was  a  special  proceeding  under  the  statute  of  March  16,  1889, 
for  the  purpose  of  obtaining  the  decree  of  the  Court  approving  and  con- 
firming the  proceedings  had  for  the  organization  of  the  Modesto  Irriga- 
tion District,  and  for  the  issuance  and  sale  of  the  bonds  of  the  district. 

The  petition  was  filed  on  the  first  day  of  August,  1889.  The  Court 
thereupon  made  an  order  fixing  the  twenty-fourth  day  of  August  for 
the  hearing  of  the  petition,  and  required  that  the  Clerk  should  give  the 
notice  of  the  hearing  in  the  manner  prescribed  by  law.  In  pursuance 
of  this  order  the  Clerk  gave  and  published  notice.  On  August  twenty- 
fourth  the  defendant  appeared  and  demurred  to  the  petition.  The 
demurrer  was  overruled.  Thereafter  the  defendant  filed  his  answer,  and, 
on  the  issues  thus  raised  the  cause  was  tried.  When  the  taking  of  the 
testimony  was  concluded,  and  during  the  argument,  the  respondents 
asked  and  obtained  leave  to  amend  the  petition  to  make  it  uniform  to 
the  evidence  taken.  Leave  was  then  granted  to  the  defendant  to 
answer  such  amendments  as  might  be  made,  and  on  the  eighteenth  day 
of  November,  1889,  the  defendant  filed  his  answer  to  the  petition  as- 
amended.  The  defendant  asked  that  the  case  be  tried  de  novo,  but  the 
demand  was  refused.  The  defendant  was,  however,  permitted  to  ofter 
evidence  in  support  of  any  new  matter  in  his  amended  answer.  The 
Court  gave  judgment  for  the  plaintifi^,  and  the  defendant  appealed. 
Further  facts  appear  from  the  opinion. 

George  W.  Schell,  C.  W.  Easton,  and  Thomas  B.  Bond,  for  appellant, 
contended: 

That  a  general  notice  to  the  world  was  necessary,  and  that  a  limited 
notice  was  insufficient  (Coaples  on  Proceedings  in  rem;  Cooley  on  Const. 
Lim.,  402),  and  that  the  notice  must  be  served;  that  the  people  had  no 
notice  of  the  amended  complaint,  and  that  the  judgment  was  therefore 
without  due  process  of  laAv  {Thompson  vs.  Johnson,  60  Cal.  294);  that 
Tregea  had  a  right  to  raise  this  objection;  that  to  give  judgment  with- 
out notice  was  unconstitutional;  that  the  Supervisors  violated  the  stat- 
ute by  including  the  city  of  Modesto  in  the  district  (Stats.  1887,  p.  30, 
Sec.  2). 

Further,  that  evidence  should  have  been  allowed  to  show  that  the 
Supervisors  included  the  city  of  Modesto  for  the  purpose  of  obtaining 
voters  to  force  outside  farmers  into  the  corporation  {Spring  Valley  Water- 
works vs.  San  Francisco,  82  Cal.  286);  that  the  twenty-eight  thousand 
acres  were  improperly  excluded  from  the  district;  that  the  Court  erred 
in  holding  that  the  order  of  July  31,  1889,  for  $400,000,  was  an  order  for 
a  part  of  the  same  bonds  ordered  to  be  issued  by  an  order  of  the  Board 
of  Supervisors  made  June  3, 1888;  that  the  notice  of  the  hearing  of  the 
original  petition  did  not  state  the  prayer  of  petition  as  required  by  the 
statute;  that  the  Court  should  have  tried  the  case  de  novo  after  the 
filing  and  serving  of  the  amended  answer  and  the  answer  thereto  (C.  C. 


—  53  — 

P.  67;  Kentfield  vs.  Hayes,  57  Cal.  409;  Barber-  vs.  Reynolds,  33  Cal.  501); 
that  no  notice  of  an  election  for  the  issuance  of  bonds  was  posted  in  the 
■office  of  the  Board  fifteen  days  before  the  election,  as  required  by  Section 
5  of  Act  of  March  7,  1887;  that  the  action  was  prematurely  brought, 
and  that  the  proceeding  could  not  be  maintained,  because  no  bonds  had 
in  fact  been  issued  (Stats.  1889,  p.  212;  Stats.  1887,  p.  35,  Sec.  15);  that 
if  the  Legislature  intended  by  the  Act  of  February  16,  1889,  p.  21,  to 
bind  the  new  district  by  an  election  held  by  the  old  district  ordering 
the  issuance  of  the  bonds,  the  Act  to  that  intent  is  in  conflict  with  Sees. 
12  and  13  of  Art.  XI  of  the  Constitution  of  California,  and  Sec.  10,  Art. 
I  of  the  Constitution  of  the  United  States.  ( Turlock  Irrigation  District 
vs.  Williams,  76  Cal.  370.) 

C.  C.  Wright,  attorney  for  the  respondent,  admitted  that  the  proceed- 
ing was  one  in  rem,  but  contended: 

1.  That  the  notice  was  sufficient.  (Cooley  on  Const.  Lim.,  4th  ed.,  p. 
503;  Lent  vs.  Tillson,  72  Cal.  404;  Estate  of  Johnson  vs.  Tyson,  45  Cal. 
'257;  Suydam  et  al.  vs.  Pitcher  &  Poole,  4  Cal.  280;  Rich  vs.  Starhuck,  45 
Ind.  310;  Wade  on  Notice,  Sec.  1203.) 

2.  That  the  defendant  would  not  be  heard  to  complain  that  the  people 
of  the  district  had  no  notice  of  the  amended  complaint.  ( Thompson  vs. 
Johnson,  60  Cal.  292;  McGray  vs.  Pedrorena.) 

3.  That  the  defendant  has  no  authority  whatever  to  make  objections 
for  the  people  of  the  district. 

4.  The  respondent  admits  that  a  judgment  against  the  land  of  the  dis- 
trict and  all  of  its  inhabitants,  without  notice,  would  be  void. 

5  and  6.  The  Board  of  Supervisors  have  exclusive  power  to  establish 
and  define  the  boundaries  of  a  district,  and  to  say  what  lands  shall, 
and  what  shall  not,  be  included  within  those  boundaries.  (Stats.  1887, 
p.  30,  Sec.  2;  Central  Irrigation  District  vs.  De  Lappe,  79  Cal.  351.)  That 
what  the  Legislature  had  power  to  do  by  special  Act  before  the  Constitu- 
tion of  1879,  it  had  delegated  to  local  tribunals  to  do  now.  The  question 
whether  a  town  should  be  included  in  an  irrigation  district  was  one  of 
public  policy  (Cooley  on  Const.  Lim.  150) ;  the  legislative  enactment  that 
-a  district  will  be  benefited  is  conclusive  (Cooley  on  Const.  Lim.  661, _2d 
ed.).  That  the  legislative  Act  of  assigning  districts  for  special  taxation 
on  the  basis  of  benefits  cannot  be  attacked  on  the  ground  of  error  in 
judgment  regarding  the  special  benefits  (Cooley  on  Taxation,  450;  Litch- 
field vs.  Vernon;  People  vs.  Lawrence,  41  Id.  140;  St.  Louis  vs.  Oeters,  36 
"Mo.  456;  Shaw  vs.  Dennis,  5  Gilm.  416;  Philadelphia  vs.  Field,  58  Pa.  St. 
320;  Wright  vs.  Boston,  9  Cush.  233).  The  lands  need  not  be  susceptible 
of  irrigation;  the  criterion  is  are  they  benefited  by  it?  (Stats.  1887,  p.  29, 
Sec.  2.)  The  determination  of  the"  Board  on  this  point  is  conclusive. 
The  statute  of  1887  leaves  no  doubt  Avhatever  that  the  Legislature  con- 
templated the  inclusion  of  city  and  town  property  in  a  district  when,  in 
the  opinion  of  the  Board  of  Supervisors,  it  would  be  benefited  thereby. 
The  policy  of  the  law  was  a  broad  one,  that  whatever  property  would 
receive  a  benefit,  whether  by  being  developed  as  agricultural  lands  or  by 
having  the  conditions  surrounding  it  so  improved  as  to  enhance  its  mar- 
ket value,  should  be  properly  assessable  and  might  be  included.  ( Turlock 
Irrigation  District  vs.  Williams,  76  Cal.  360;  Cooley  on  Taxation,  pp.  450- 
451,  1st  ed.;  Downer  vs.  Boston,  61  Mass.  281;  32  Cal.  553;   Wright  vs. 


—  54  — 

City  of  Boston^  63  Mass.  239.)  That  the  evidence  does  not  show  that 
the  Board  of  Supervisors  did  not  exercise  their  best  judgment  in  estab- 
lishing the  boundaries  of  the  district.  That  parole  evidence  cannot  be 
admitted  to  contradict  the  record.  {School  District  vs.  Atherton,  12  Mit. 
113;  Morrison  vs.  City  of  Lawrence,  11  Browne  221;  Dillon  on  Mun. 
Corp.,  Sees.  295,  299;  Taylor  vs.  Henry,  2  Pick.  397;  Mayhew  vs.  District 
of  Gay  Head,  13  Allen,  129;  Boston  Tp.  Co.  vs.  Pomfret,  20  Conn.  500; 
Gilbert  vs.  New  Haven,  40  Conn.  102;  Langsdale  vs.  Bonton,-12  Ind.  467; 
Indianapolis  vs.  Imherry,  17  Ind.  175, 179;  Delphi  vs.  Evans,  36  Ind.  90;, 
Bigelow  vs.  Perth  Amhoy,  1  Dutch  (N.  J.)  296;  Gearhart  vs.  Dixon,  1  Pa. 
St.  224;  City  of  Lowell  vs.  Wheelock,  11  Cush.  391;  Morrison,  Admx.,  vs. 
City  of  Lawrence,  98  Mass.  221;  Louisville  vs.  McKegney,  7  Bush.  651;. 
47  Cal.  488;  Meeker  vs.  Van  Rensselaer,  15  Wend.  397.)  No  fraud  is- 
charged  by  the  appellant. 

7.  The  exclusion  of  lands  was  legal.  No  bonds  had  been  sold.  There 
was  neither  a  delivery  of  bonds  nor  an  oifer  of  payment  of  the  price. 
{Blackwood  vs.  Cutting  Packing  Co.,  76  Cal.  212;  Peabody  vs.  McGuire, 
79  Me.  585;  Evansville  R.  R.  Co.  vs.  Erwin,  84  Ind.  464;  Turner  \s.  Moore, 
58  Vt.  456;  Adams  vs.  Connor,  100  Mass.  515.)  But  the  appellant  can- 
not raise  any  objection  to  the  exclusion,  because  the  statute  was  only 
intended  for  the  benefit  of  the  holder  of  outstanding  bonds.  (Stats.  1889,, 
p.  21,  Sees.  4-6.) 

8.  That  the  appellant  cannot  object  to  the  exclusion  on  behalf  of  own- 
ers of  land  within  the  excluded  district. 

9.  That  the  determination  to  proceed  upon  any  given  plan  of  irriga- 
tion was  not  conclusive  on  the  Board,  and  it  was  their  duty  to  change 
their  plans  as  often  as  it  became  apparent  that  any  other  plan  was  better 
than  the  one  under  contemplation. 

10.  The  respondent  contends  that  the  notice  stated  the  prayer  of  the 
petition  sufficiently.     {Lent  vs.  Tillson,  72  Cal.  404.) 

11.  That  the  amendment  was  only  such  as  was  necessary  to  meet  the 
proofs,  and  that  such  an  amendment  was  clearly  admissible.  {Con- 
nolly vs.  Peck,  3  Cal.  82;  Valencia  vs.  Cauch,  32  Cal.  340;  Tryon  vs. 
Sutton,  13  Cal.  494;  Hooper  vs.  Wells,  27  Cal.  35;  Carpentier  vs.  Bren- 
ham,  50  Cal.  549;  Farmers'  Nat.  Bk.  vs.  Stover,  60  Cal.  387.) 

12.  It  was  not  necessary  that  a  notice  of  the  bond  election  should 
have  been  posted  in  the  office  of  the  Board  of  Directors.  The  provis- 
ions of  Section  5  of  the  Act  of  1887  do  not  apply.  The  provisions  of 
Section  15  govern.     (Endlich  on  Interpretation  of  Statutes,  Sec.  399.) 

13.  The  action  for  confirmation  lies  before  the  bonds  have  been  deliv- 
ered into  the  hands  of  a  purchaser.  Any  other  interpretation  would 
defeat  the  purpose  of  the  statute,  as  the  essence  of  the  whole  Act  is  that 
the  purchaser  may  have  the  benefit  of  its  provisions  before  he  incurs  any 
hazard  in  the  purchase  of  the  bonds. 

14  and  15.  The  Legislature  has  power  to  bind  a  new  district  for  bonds 
issued  before  the  exclusion  of  lands.  (Dillon  on  Mun.  Corp.,  3d  ed., 
Sees.  185,  186,  187,  189.)  Funds  raised  or  to  be  raised  by  taxation  are 
subject  to  municipal  control.  {Creighton  vs.  San  Francisco,  42  Cal.  446;, 
Blanding  vs.  Burr,  13  Cal.  343;  Town  of  Didon  vs.  Mayes,  72 .Cal.  166; 
Santa  Rosa  vs.  Coulter,  58  Cal.  537.) 

C.  A.  Stonesifer  (A.  L.  Rhodes,  of  counsel)  contended  that  notice  tO' 
those  interested  in  the  litigation  only  was  necessary;  that  the  defendant 


00 


cannot  complain  of  want  of  notice  of  the  amended  petition,  as  he  had 
appeared,  and  that  he  had  no  authority  to  object  that  other  persons  had 
no  notice  {McGray  vs.  Pedrorena,  58  Cal.  94);  that  notice  of  amended 
pleadings  need  not  be  given  to  those  not  appearing  (C.  C.  P.,  1014) ;  that 
this  was  not  a  proceeding  in  rem,  but  a  special  proceeding  (Confirmation 
Act,  Sec.  1 ) ;  that  notice  by  publication  in  a  special  proceeding  was  due 
process  of  law.  {Lent  vs.  Tilhon,  72  Cal.  404;  Davidson  vs.  New  Orleans, 
96  U.  S.  104;  Riley  vs.  Lancaster,  39  Cal.  354;  Eitel  vs.  Foote,  39  Cal. 
440;  Mayo  vs.  Foley,  40  Cal.  283;  State  vs.  McGlynn,  20  Cal.  233;  Lrwin 
vs.  Scriber,  18  Cal.  449;  Boyd  vs.  Blankman,S9  Cal.  19;  Peo2:)le  vs.  Hagar, 
52  Cal.  171;  Barrett  vs.  Carney,  33  Cal.  536;  Friedlander  vs.  Loucks,  34 
Cal.  38.) 

Further,  that  the  including  of  Modesto  was  not  a  violation  of  the 
law;  that  the  question  as  to  what  lands  should  be  benefited,  and  should 
be  included  within  a  district,  is  committed  to  the  judgment  and  discre- 
tion of  the  Board,  and  that  its  action  is  conclusive;  that  inquiry  cannot 
be  made  into  the  motives  of  the  members  of  the  Board;  that  nothing 
short  of  actual  fraud  will  be  a  ground  of  attack,  and  that  the  acts  of 
fraud  must  be  specifically  alleged.  {People  vs.  Hagar,  52  Cal.  181;  Free- 
man on  Judgments,  Sees.  523,524;  Bigelow  on  Estoppel,  p.  142;  People 
vs.  Hagar,  66  Cal.  60;  Bernal  vs.  Lynch,  36  Cal.  135;  Waugh  vs.  Chaun- 
cey,  13  Cal.  11;  Comstock  vs.  Crawford,  3  Wall.  403;  Mayo  vs.  Ah  Loy,  32 
Cal.  479;  People  vs.  Doe,  G.,  36  Cal.  220;  Ma^jo  vs.  Foley,  40  Cal.  282; 
United  States  ys.  Arredondo,  6  Peters,  729.) 

That  the  exclusion  of  a  body  of  land  from  the  district  did  not  affect 
the  proceedings.  The  proceedings  were  regular.  (Stats.  1889,  p.  21.) 
There  were  no  outstanding  bonds,  as  bonds  contracted  to  be  sold  but  not 
delivered  are  not  outstanding  bonds.  There  was  no  objection  to  the 
exclusion,  and  therefore  no  election  was  required.  And  if  the  exclusion 
w^as  irregular,  the  defendant  would  have  no  cause  of  complaint,  as  the 
land  would  still  be  in  the  district;  that  there  was  nothing  in  the  evi- 
dence to  sustain  the  claim  that  the  $400,000  of  bonds  ordered  to  be  sold 
was  not  part  of  the  $800,000;  that  the  source  and  mode  of  obtaining 
water  may  be  changed  from  time  to  time.  The  notice  sufficiently  states 
the  prayer  of  the  petition  {McGray  \s.  Pedrorena,  58  Cal.  94),  and  con- 
forms to  Section  3  of  the  Confirmation  Act.  A  trial  de  novo  was  not 
required  upon  the  filing  of  the  amended  petition ;  the  posting  of  the 
general  notice  required  bv  Section  5  was  established  bv  presumption 
(C.  C.  P.,  Sec.  1963,  Sub.  lo;  1  Phil,  on  Ev.,  Cow.,  Hill  &  E.  notes,  p.  604; 
People  vs.  Holden,  28  Cal.  133);  that  if  there  was  an  omission  to  clo  so  it 
did  not  affect  any  substantial  rights,  and  must  be  disregarded  (Pol. 
Code,  Sec.  4;  10  la.  218);  further,  that  Section  5  does  not  govern,  but 
that  the  notice  is  regulated  by  Section  15  of  the  Act,  and  that  on  the 
pleadings  the  point  cannot  be  made  or  maintained. 

The  statute  does  not  bear  out  the  construction  contended  for,  that 
the  action  was  prematurely  brought.  The  denomination  of  the  bonds 
need  not  be  fixed  at  one  and  the  same  time,  as  that  matter  is  left  Avith 
the  discretion  of  the  Board.  The  contention  that  the  authorization 
became  void  because  part  of  the  district  was  excluded  cannot  be  sus- 
tained. The  proceedings  in  the  formation,  organization,  and  govern- 
ment of  irrigation  districts  are  to  be  liberally  construed.  .  {Irrigation 
District  vs.  De  Lappe,  79  Cal.  354;  Irrigation  District  vs.  Williams,  76 
Cal.  368.) 


—  56  — 

Geo.  W.  Schell,  C.  W.  Eastin,  and  Thos.  B.  Bond,  for  the  appellants, 
in  reply  contended: 

The  judgment  of  the  Board  is  not  conclusive.  It  is  not  only  essential 
that  the  land  should  be  benefited  by  irrigation,  but  also  that  it  must  be 
from  a  common  source,  and  the  same  system  of  works.  The  city  of 
Modesto  cannot  be  benefited  from  a  common  source  by  the  same  system 
of  works.  Evidence  of  this  fact,  and  of  the  fact  that  the  Board  were 
aware  of  it,  was  rejected.  The  Board  is  not  the  final  judge  as  to  whether 
the  land  is  susceptible  of  irrigation.  There  should  have  been  notice  of 
the  amended  complaint.  {Thompson  vs.  Johnson,  60  Cal.  294.)  Tregea 
has  the  right  to  make  the  objection,  as  neither  the  judgment  nor  the 
action  are  against  him,  but  against  the  district,  and  he  has  the  right  to 
appear  and  show  cause  why  the  judgment  should  not  be  taken  against 
all  the  people.  The  bonds  must  be  immediately  issued,  and  must  be 
numbered  as  issued,  and  bear  date  at  the  time  of  their  issue.  The  sale 
of  the  bonds  to  Perley  &  Tucker  was  complete,  and  the  title  passed; 
the  Board  had  no  power  to  rescind  the  sale,  and  the  exclusion  of  the 
28,000-acre  tract  was  void,  because  they  never  assented  to  it.  Resjjond- 
ent  is  estopped  to  deny  that  the  land  was  included.  (C.  C.  P.,  Sec.  1962, 
Sub.  3.)  If  the  land  was  properly  included,  it  would  violate  Art.  XI, 
Sees.  12  and  13  of  the  Constitution,  to  impose  upon  the  new  district  the 
burden  of  the  old.  The  new  district  never  assented  to  the  issuance  of 
the  bonds,  except  in  conjunction  with  the  old.  The  exclusion  of  twenty- 
eight  thousand  acres  of  land,  and  the  adoption  of  a  totally  different 
scheme,  without  the  concurrence  or  assent  of  the  people  remaining  in 
the  district,  was  a  violation  of  their  constitutional  rights.  The  adver- 
tisement of  the  bonds  of  the  district  for  sale,  the  unconditional  bid  of 
Perley  &  Tucker,  and  the  unconditional  acceptance  of  the  bid  by  the 
Board,  and  the  order  entered  by  them  upon  their  records  selling  the 
same  to  Perley  &  Tucker,  constituted  a  complete  sale,  which  either  party 
could  enforce  in  law — one  which  could  not  be  set  aside  or  annulled  by 
the  private  or  secret  agreement  of  one  or  both.  This  sale  was  in  force 
when  the  order  of  exclusion  was  made,  and  was  made  without  their 
assent.  The  denial  of  notice  in  the  answer,  though  made  on  informa- 
tion and  belief,  puts  in  issue  the  giving  of  notice.  {Reid  vs.  Buffum,  79 
Cal.  82.)  The  giving  of  the  notice  required  by  Section  5  was  essential. 
{People  vs.  Scale,  52  Cal.  620;  People  vs.  Castro,  39  Cal.  65.)  The  defend- 
ant did  not  have  to  prove  his  negative  allegation  that  no  notice  was 
given.  (C.C.  P.,  Sees.  1868, 1981;  Stevens' Evidence,  96;  Greenl.  Evid., 
79,  ch.  7;  U.  S.  vs.  So.  Cal.  Coal  Co.,1  W.  C.  R.  1-12;  Bates  vs.  Lyman, 
12  Pac.  33.)  The  election  for  bonds  was  a  special  election.  Notice  of 
the  time  and  place  was  necessary,  therefore  the  notice  prescribed  by  Sec- 
tion 5  was  necessarv.  The  allegations  in  the  complaint  are  sufhciently 
traversed.  {Hill  vs.  Smith,  27  Cal.  480;  Estee's  PL,  3d  ed.,  par.  3174.) 
Time  and  place  are  the  substance  of  every  election.  {Dickey  vs.  Hulbert, 
5  Cal.  345;  Leading  Election  Cases,  254;  Chadwick  vs.  Me^wm, Sup.  Ct., 
Pa.,  March  Term,  1871.)  Section  5  applies  to  every  election  held  under 
the  Wright  Act.  The  case  of  Lent  vs.  Tillson,  72  Cal.  424,  does  not  sus- 
tain the  proposition  that  no  election  was  necessary.  The  action  of  the 
Board  in  abandoning  one  scheme  and  adopting  another  vitiated  the  pro- 
ceedings for  the  issuance  of  the  $400,000  bonds,  was  not  basad  on  the 
estimates  of  the  Board  prior  to  the  election  called  for  the  first  scheme, 


0/    — 

but  on  the  new  estimate  made  on  the  new  scheme,  eighteen  months  after 
the  election.  The  Board  having  made  this  estimate  eighteen  montlis 
after  the  election,  their  action  is  invalid,  unless  ratified  by  an  election. 
An  order  of  a  Board  of  Supervisors  does  not  impart  the  same  absolute 
verity  as  a  judgment.     (C.  C.  P.,  Sec.  1962.) 

By  the  Court,  Beatty,  C.  J.: 

This  is  a  special  proceeding  instituted  in  pursuance  of  the  Act  of 
March  16, 1889  (Stats.  1889,  p.  212),  for  the  purpose  of  obtaining  judicial 
confirmation  of  the  validity  of  certain  bonds  of  the  respondent,  which  it 
has  ordered  to  be  issued  and  sold. 

The  Act  referred  to  is  supplemental  to  the  Act  entitled  "An  Act  to 
provide  for  the  organization  and  government  of  irrigation  districts,  and 
to  provide  for  the  acquisition  of  water  and  other  property,  and  for  the 
distribution  of  water  thereby  for  irrigation  purposes,"  approved  March 
7,  1887,  and  commonly  known  as  the  Wright  Law.     (Stats.  1887,  p.  29.) 

The  original  Act,  as  its  title  imports,  provides  for  the  organization  of 
irrigation  districts,  and  for  the  adoption  and  carrying  out  of  plans  for 
the  irrigation  of  the  lands  embraced  therein.  Among  other  things  so 
provided  for,  is  the  issuance  and  sale  of  the  bonds  of  the  several  districts. 
Before  any  such  bonds  can  be  issued  or  sold,  the  Directors  of  the  district 
are  required  to  submit  the  proposition  to  a  vote  of  the  electors  at  a  special 
election,  and  to  order  and  give  notice  of  such  election  in  a  manner  par- 
ticularly prescribed. 

As  to  the  validity  of  the  bonds  when  issued,  depends  upon  the  regu- 
larity of  the  proceedings  of  the  Board  and  upon  the  ratification  of  the 
proposition  by  a  majority  of  the  electors.  It  is  a  matter  of  common 
knowledge  that  investors  have  been  unwilling  to  take  them  at  their 
par  value  while  all  the  facts  afit'ecting  their  validity  remain  the  subject 
of  qviestion  and  dispute. 

To  meet  this  inconvenience — for  the  security  of  investors,  and  to 
enable  the  irrigation  districts  to  dispose  of  their  bonds  on  advantageous 
terms — the  supplemental  Act,  under  which  this  proceeding  was  insti- 
tuted, was  passed. 

It  provides  that  the  Board  of  Directors  of  any  irrigation  district  may 
"  commence  a  special  proceeding,  in  and  by  which  the  proceedings  of 
said  Board  and  of  said  district  providing  for  and  authorizing  the  issue 
and  sale  of  the  bonds  of  said  district,  whether  said  bonds  or'  any  of 
them  have  or  have  not  been  sold,  may  be  judicially  examined,  approved, 
and  confirmed." 

The  proceeding  is  commenced  by  the  filing  of  a  petition  in  the  Supe- 
rior Court  of  the  county  in  which  the  lands  of  the  district,  or  some 
portion  thereof,  are  situate,  praying  the  confirmation  of  the  proceedings 
of  the  Directors.  Whereupon,  the  Court  is  required  to  make  and  pub- 
lish an  order  stating  the  prayer  of  the  petition  and  fixing  a  time  and 
place  for  the  hearing. 

Any  person  interested  may  demur  to  or  answer  the  allegations  of  the 
petition,  and  the  issues  of  law  and  fact  are  tried  and  determined  by  the 
Court  as  in  other  cases  under  the  ordinary  rules  of  practice. 

The  Court  has  power,  upon  the  hearing,  to  examine  and  determine 
the  legality  and  validity  of  the  organization  of  the  district,  and  all  mat- 
ters affecting  the  legality  and  validity  of  the  bonds  and  the  order  for 


—  58  — 

their  sale,  and  has  the  power  to  confirm  the  proceedings  in  whole  or  in 
part,  according  to  the  facts. 

In  this  case,  the  proceeding  in  the  Superior  Court  resulted  in  a  judg- 
ment affirming  the  regularity  of  the  organization  of  the  respondent  as 
an  irrigation  district,  and  the  legality  and  validity  of  its  orders  for  the 
issuance  of  its  bonds  to  the  amount  of  $800,000,  and  for  the  sale  of 
$400,000  thereof. 

The  defendant,  a  resident  and  property  owner  of  the  district,  who 
contested  the  validity  of  the  respondent's  proceedings,  appeals  from  the 
judgment  of  the  Superior  Court  and  from  an  order  denying  his  motion 
for  a  new  trial. 

Numerous  errors  are  assigned  and  argued,  but  they  are  all  involved 
in,  and  may  be  disposed  of  by,  a  consideration  of  a  few  general  propo- 
sitions: 

First — It  is  contended  that  there  was  not  sufficient  notice  of  this  pro- 
ceeding to  give  the  Superior  Court  jurisdiction  to  render  a  judgment 
binding  upon  the  lands  of  the  district  and  their  owners.  There  seems 
to  be  a  claim  under  this  head,  though  it  is  not  particularly  insisted 
upon,  that  the  notice  prescribed  by  the  statute  is  not  sufficient. 

The  object  of  the  proceeding  is,  of  course,  to  compel  every  person 
interested  in  the  district,  and  whose  property  is  to  be  bound  for  the 
payment  of  its  debts,  to  come  into  Court,  and  within  the  time  limited, 
present  and  submit  to  judicial  investigation  any  and  all  objections  he 
may  have  to  the  regularity  of  the  organization  of  the  district,  and  all 
other  matters  affecting  the  validity  of  the  bonds,  so  that  it  may  be  finally 
and  conclusively  determined  by  a  judgment  which  neither  he  nor  his 
successors  in  interest  can  thereafter  question,  whether  such  bonds  are 
legal  and  valid  or  not. 

Notice  must  therefore  be  given  to  all  persons  so  interested.  But  it 
need  not  be  a  personal  notice.  It  not  only  may  be,  but  to  secure  the 
ends  of  the  statute  it  must  be,  a  general  notice  by  publication  in  some 
form.  It  is  unnecessary  to  take  up  time  in  the  discussion  of  this  ques- 
tion, which  has  long  since  ceased  to  be  an  open  one  in  this  State.  With- 
out referring  to  many. earlier  and  later  decisions  bearing  more  or  less 
directly  upon  the  point,  it  is  sufficient  to  say  that  the  statute  and  pro- 
ceedings under  review  in  Lent  vs.  Tillson,  72  Cal.  404,  were  in  all  essential 
respects  similar,  as  to  their  objects  and  the  substance  of  their  provisions, 
to  the  statutes  and  proceedings  in  question  here,  and  the  notice  of  this 
proceeding  prescribed  by  the  statute  of  1889  is  for  every  purpose  as 
ample  and  beneficial  as  the  notice  to  property  owners,  which  was  in 
that  case  held  sufficient  to  give  validity  to  the  proceedings  by  which  the 
lands  of  the  local  assessment  district  were  subjected  to  a  lien  for  the 
payment  of  the  Dupont-Street  bonds.  The  provisions  of  the  supple- 
mental Act  in  regard  to  this  matter  are  found  in  Section  3,  Statutes  of 
1889,  p.  212,  which  reads  as  follows: 

"The  Court  shall  fix  the  time  for  the  hearing  of  said  petition,  and 
shall  order  the  Clerk  of  the  Court  to  give  and  publish  a  notice  of  the 
filing  of  said  petition.  The  notice  shall  be  given  and  published  in  the 
same  manner  and  for  the  same  length  of  time  that  the  notice  of  a  special 
election  provided  for  by  said  Act  to  determine  whether  the  bonds  of 
said  district  shall  be  issued  is  required  to  be  given  and  published.  The 
notice  shall  state  the  time  and  place  fixed  for  the  hearing  of  the  peti- 
tion, and  the  prayer  of  the  petition,  and  that  any  person  interested  in  the 


—  59  — 

organization  of  said  district,  or  in  the  proceedings  for  the  issue  or  sale 
of  said  bonds,  may,  on  or  before  the  day  fixed  for  the  hearing  of  said 
petition,  demur  to  or  answer  said  petition.  The  petition  may  be  referred 
to  and  described  in  said  notice  as  the  petition  of  the  Board  of  Directors 
of Irrigation  District  (giving  its  name),  praying  that  the  proceed- 
ings for  the  issue  and  sale  of  the  bonds  of  said  district  may  be  examined, 
approved,  and  confirmed  by  said  Court." 

But  it  is  further  contended  that  even  conceding  the  sufficiency  of  the 
notice  prescribed  by  the  statute,  the  notice  actually  given  of  this  pro- 
ceeding did  not  comply  with  the  statute. 

In  order  to  arrive  at  a  proper  understanding  of  the  several  objections 
falling  under  this  head,  it  is  necessary  to  state  generally  the  facts  con- 
cerning the  organization  of  the  respondent  as  an  irrigation  district,  and 
its  subsequent  proceedings. 

The  petition  to  the  Supervisors  of  Stanislaus  County,  in  which  all  its 
lands  are  situate,  for  the  formation  of  the  district,  was  filed  May  11, 
1887,  and  the  order  of  the  Board  declaring  the  clue  organization  of  the 
district  was  made  July  18,  1887.  Thereupon,  the  Directors  of  the  dis- 
trict organized,  caused  surveys  and  estimates  of  the  cost  of  acquisition 
and  distribution  of  water  to  be  made,  and  on  November  19,  1887,  fixed 
the  sum  necessary  to  be  raised  by  the  issuance  of  the  bonds  of  the  dis- 
trict at  $800,000.  The  proposition  to  issue  this  amount  of  bonds  was 
at  a  special  election  submitted  to  a  vote  of  the  electors  of  the  district, 
who,  by  a  considerable  majority,  voted  in  favor  of  the  proposition. 

Upon  ascertaining  the  result  of  this  election  the  Directors,  on  the 
third  day  of  January,  1888,  "resolved  and  ordered  that  the  bonds  of  said 
district  in  the  sum  of  $800,000  be  issued  in  the  manner  and  form  pre- 
scribed by  said  Act." 

After  resolving  upon  the  issuance  of  said  bonds,  several  unsuccessful 
efforts  seem  to  have  been  made  to  dispose  of  a  portion  of  the  amount 
authorized,  and  finally  on  July  31,  1889,  the  following  resolutions  were 
adopted  by  the  Board  of  Directors: 

"  It  is  hereby  ordered  that  the  bonds  of  this  district  be  issued  in  the 
amount  of  $400,000,  of  the  following  denominations:  Seven  hundred 
and  sixty  bonds  of  the  denomination  of  $500  each,  and  two  hundred 
bonds  of  the  denomination  of  $100  each,  and  that  the  said  bonds  shall 
in  form  and  substance  conform  to  the  provisions'of  the  Act  of  the  Legis- 
lature of  the  State  of  California  entitled  'An  Act  to  provide  for  the 
organization  and  government  of  irrigation  districts,  and  to  provide  for 
the  acquisition  of  water  and  other  property,  and  for  the  distribution  of 
water  thereby  for  irrigation  purposes,'  approved  March  7, 1887,  and  that 
they  be  signed,  sealed,  and  numbered  as  in  said  Act  provided. 

"  It  is  further  ordered  that  the  bonds  of  the  district  conforming  to  the 
provisions  of  said  Act  and  to  this  order  be  prepared,  executed,  and 
issued  in  such  manner  and  form  in  all  respects  that  they  shall  become 
and  be  ready  for  sale  by  this  Board,  and  on  behalf  of  this  district. 

'^Resolved,  That  this  Board  hereby  declares  its  intention  to  sell  the 
bonds  of  this  district  to  the  amount  of  $400,000,  to  wit:  Seven  hundred 
and  sixty  bonds  of  the  denomination  of  $500  each,  and  two  hundred 
bonds  of  the  denomination  of  $100  each;  and  it  is  therefore  ordered  that 
a  notice,  that  sealed  proposals  will  be  received  by  this  Board,  at  its 
office  in  the  city  of  Modesto,  up  to  the  hour  of  1:30  o'clock  p.  m.,  of  the 
third  day  of  September,  1889,  for  the  purchase  of  said  bonds,  be  pub- 


—  60  — 

lished  for  twenty  days  before  the  said  date  in  the  following  newspapers: 
The  "  Daily  Alta,"  published  in  the  city  of  San  Francisco,  the  "  Record- 
Union,"  published  in  the  city  of  Sacramento,  and  the  "  Daily  Times," 
published  in  the  city  of  Los  Angeles.  On  motion  duly  made,  seconded, 
and  carried,  it  was  ordered  that  the  Board  of  Directors  of  this  district 
commence  special  proceedings  in  and  by  which  the  proceedings  of  said 
Board  and  of  said  district  for  and  authorizing  the  sale  of  the  bonds  of 
said  district,  may  be  judicially  examined,  approved,  and  confirmed." 

In  pursuance  of  this  resolution,  the  original  petition  in  this  case  was 
filed  in  the  Superior  Court  of  Stanislaus  County  on  the  following  day, 
August  1,  1889. 

In  this  petition  the  due  organization  of  the  district,  under  the  Act  of 
March  7, 1887,  is  alleged  to  have  been  effected  on  the  eighteenth  day  of 
July,  1887.  It  is  alleged  that  certain  persons  (naming  them)  were  then 
duly  elected,  and  have  ever  since  been  the  Directors  of  the  district;  that 
all  its  lands  are  in  Stanislaus  County;  that  as  soon  as  practicable  after  its 
organization,  to  wit:  on  November  19,  1887,  the  Directors  duly  estimated 
the  cost  of  acquiring  water  rights  and  constructing  irrigation  works  for 
the  district  at  $800,000,  and  that  it  was  necessary  to  issue  the  bonds  of  tlie 
district  to  that  amount,  and  that  the  same  should  be  sold,  provided  the 
electors  of  the  district  should  vote  in  favor  of  their  issuance.  It  is  alleged 
that  a  special  election  was  immediately  called,  at  which  the  proposition 
should  be  submitted  and  voted  upon,  of  which  the  notices  required  by 
the  statute  were  duly  published  and  posted;  that  at  the  time  appointed 
the  election  was  in  fact  held;  that  the  returns  of  said  election  were  duly 
made  and  canvassed,  and  the  result  duly  declared  and  recorded,  and 
that  the  vote  was  four  hundred  and  thirty-nine  in  favor  of,  and  only 
seventy-six  against,  the  proposition.  The  original  petition  fails  at  this 
point  to  state  the  next  steps  actually  taken  by  the  Board  of  Directors, 
viz.:  its  resolution  of  January  3,  1888,  to  issue  the  $800,000,  authorized 
by  said  vote,  and  its  unsuccessful  efforts  to  sell  portions  of  such  issue. 
Omitting  all  reference  to  these  proceedings,  it  alleges  the  orders  and 
resolutions  of  July  31,  1889,  above  quoted,  directing  the  issuance  and 
sale  of  bonds  to  the  amount  of  $400,000,  and  closes  with  the  following 
prayer: 

"  Wherefore,  your  petitioner  prays  that  the  proceedings  aforesaid,  for 
the  issue  and  sale  of*  said  bonds  of  said  irrigation  district,  may  be 
judicially  examined,  approved,  and  affirmed  by  said  Court." 

Upon  the  filing  of  this  petition  the  Judge  of  the  Superior  Court  made 
an  order  fixing  the  twenty-fourth  day  of  August,  1889,  for  the  hearing 
of  the  petition,  and  ordered  the  Clerk  to  cause  notice  of  the  filing  of  the 
petition  to  be  given  and  published,  as  prescribed  by  law. 

In  pursuance  of  said  order,  the  following  notice  Avas  issued  and  pub- 
lished for  the  prescribed  period: 

"  In  the  Superior  Court  of  the  county  of  Stanislaus,  State  of  California. 
In  the  matter  of  the  Modesto  Irrigation  District  No.  1,003. 

"Notice  is  hereby  given  that  the  petition  of  the  Board  of  Directors  of 
the  Modesto  Irrigation  District,  praying  that  the  proceedings  for  the  issue 
and  sale  of  the  bonds  of  said  district  may  be  examined,  approved,  and 
confirmed,  w^as  on  the  first  day  of  August,  1889,  filed  in  said  Court;  that 
said  Court  fixed  as  the  time  for  the  hearing  of  the  said  petition  the 
twenty-fourth  day  of  August,  1889,  at  the  Court  House,  in  the  city  of 
Modesto;  and  notice  is  further  given  that  any  person  interested  in  the 


—  61  — 

organization  of  said  district,  or  in  the  proceedings  for  the  issue  or  sale  of 
said  bonds,  may,  on  or  before  the  day  last  above  mentioned,  demur  to  or 
answer  said  petition. 

"  By  order  of  the  Court. 

"Attest:  E.  D.  McCabe,  Clerk. 

"  By  A.  J.  Lewis,  Deputy  Clerk. 

"(Indorsed.)     Filed  October  21,  1889. 

"E.  D.  McCabe." 

The  defendant,  on  the  twenty-fourth  day  of  August,  1889,  appeared  in 
the  proceedings  by  his  attorney  and  filed  a  demurrer  to  the  petition, 
which  was  overruled  by  the  Court,  and  on  September  third  he  filed  an 
answer,  and  the  issues  were  set  for  trial  on  October  21,  1889,  upon  which 
day  the  trial  commenced  and  continued  until  both  parties  closed  their 
evidence  on  October  twenty-sixth,  whereupon  the  Court  adjourned  until 
October  twenty-eighth.  When  the  hearing  was  resumed  on  the  twenty- 
eighth,  and  after  the  argument  had  commenced,  the  petitioner  asked 
and  obtained  leave  to  file  and  serve  an  amended  petition,  and  defendant 
was  granted  leave  to  demur  to  or  answer  such  amended  petition  within 
ten  days  after  service  of  an  engrossed  copy. 

On  the  thirtieth  day  of  October  the  amended  petition  was  filed,  which, 
in  addition  to  the  allegations  of  the  original  petition,  alleged  the  order 
of  the  Board  of  Directors  of  January  3,  1888,  for  the  issuance  of  the 
-1800,000  of  bonds  voted  by  the  electors,  and  also  that  the  $400,000  of 
bonds  ordered  issued  and  sold  by  the  resolution  of  July  31,  1889,  were 
a  part  of  the  amount  of  $800,000  ordered  issued  by  the  resolution  of 
January  3,  1888.  The  prayer  of  the  amended  petition  was  a  repetition 
of  the  original  prayer. 

The  defendant,  upon  being  served  with  the  amended  petition,  again 
demurred,  and  his  demurrer  being  overruled,  he  again  answered  specific- 
ally, denying  everything  alleged  in  the  petition,  and  setting  up  several 
matters  of  defense.  He  then  demanded  that  the  whole  case  should  be 
tried  de  novo,  disregarding  all  the  evidence  that  had  been  taken.  But 
the  Court  refused  this  demand,  holding  that  the  evidence  already  taken 
might  properly  be  considered,  but  allowing  the  parties  to  introduce  evi- 
dence as  to  the  new  matters  embraced  in  the  amended  pleadings. 

In  pursuance  of  this  order  the  trial  was  resumed  on  November  twenty- 
first  between  the  petitioner  and  defendant,  and  thereupon  the  case  was 
argued,  submitted,  and  decided. 

No  notice  of  the  changes  introduced  into  the  petition  by  the  amend- 
ments above  mentioned  was  ever  published  or  served  in  any  manner 
except  upon  the  defendant;  but  the  Court,  in  its  findings  and  decree, 
confirmed  and  declared  valid  not  only  the  order  of  July  31,  1889,  relat- 
ing to  the  issue  and  sale  of  the  $400,000  of  bonds,  but  also  the  order  of 
January  3,  1888,  relating  to  the  issue  of  $800,000,  which,  as  we  have 
said,  was  mentioned  for  the  first  time  in  the  amended  petition. 

Such  being  the  case,  the  appellant  objects  to  the  published  notice  of 
the  filing  of  the  petition;  first,  that  it  was  insufiicient  as  a  notice  of  the 
original  petition;  and  second,  that  it  could  not  possibly  confer  upon  the 
Superior  Court  any  jurisdiction  to  confirm  the  proceedings  alleged  for 
the  first  time  in  the  amended  petition. 

The  statute  (Sec.  3)  requires  that  the  notice  shall  state,  among  other 


—  62  — 

things,  the  prayer  of  the  petition,  and  it  is  contended  that  this  notice 
did  not  state  the  prayer  of  the  petition. 

But  we  think  the  notice  contained  everything  necessary  to  a  substan- 
tial compliance  with  the  law. 

The  prayer  of  the  petition  must  be  read  in  connection  with  the  peti- 
tion itself  in  order  to  understand  its  meaning,  but  so  read  it  is  clear 
and  intelligible,  and  is  in  effect  a  prayer  for  the  judicial  examination, 
approval,  and  confirmation  of  all  the  proceedings  set  out  in  the  petition, 
including  those  for  the  organization  of  the  district,  for  they,  like  the 
rest,  were  essential  to  the  legality  and  validity  of  the  bonds,  and  accord- 
ingly the  statute  (Sec.  5)  expressly  confers  power  and  jurisdiction  upon 
the  Court,  in  all  proceedings  for  the  confirmation  of  bonds,  to  examine 
and  determine,  approve  and  confirm  the  proceedings  for  the  organiza- 
tion of  the  district,  as  well  as  all  other  proceedings  that  may  affect  the 
legality  and  validity  of  the  bonds  and  the  order  for  their  sale. 

The  prayer,  therefore,  was  sufficient  when  read  in  connection  with  the 
petition,  but  to  have  repeated  it  in  its  literal  terms  in  the  notice  would 
have  been  meaningless,  and  the  only  way  to  "state"  it  was  to  give  its 
substance,  as  was  done. 

Of  course,  to  a  person  entirely  ignorant  of  the  law  authorizing  and 
regulating  the  proceedings,  the  notice  may  have  been  unintelligible,  but 
it  would  have  been  equally  so  to  such  a  person  if  the  prayer  of  the 
petition  had  been  as  full  and  specific  as  the  allegations  upon  which  it 
was  founded,  and  had  been  copied  verbatim  in  the  notice. 

A  knowledge  of  the  law  is,  however,  imputed  to  every  one  interested 
in  the  proceeding,  and  it  is  decided,  in  Lent  vs.  Tillson,  supiu,  that  the 
notices  required  in  cases  of  this  character  are  to  be  construed  and  aided 
by  reference  to  the  statute. 

So  read  and  construed,  we  think  that  the  notice  in  this  case  was  in 
substantial  compliance  with  the  statute,  and  imparted  sufficient  notice 
to  all  the  world  that  the  Directors  of  Modesto  Irrigation  District  No. 
1,008,  would,  on  the  twenty-fourth  day  of  August,  1889,  submit  the 
question  of  its  corporate  existence  and  the  regularity  of  all  its  pro- 
ceedings for  the  issuance  and  sale  of  its  bonds,  so  far  as  the  same  were 
set  out  in  its  petition  on  file,  to  the  Superior  Court  of  Stanislaus  County, 
and  would  ask  the  Court  to  decree  the  regularity  of  all  such  proceed- 
ings; and  we  think  that  all  persons  interested  in  the  district,  being  so 
notified  of  the  time  of  the  filing  of  the  petition,  and  of  the  office  in 
which  it  remained  as  a  public  record,  were  bound  to  take  notice  of  its 
s])ecific  allegations,  and  if  they  had  any  objection  to  the  confirmation 
of  the  orders  and  proceedings  referred  to  in  the  prayer  of  the  petition, 
that  they  were  required  to  present  their  objections  to  the  Court  at  the 
time  and  place  mentioned  in  the  notice,  or  be  forever  precluded — they 
and  their  successors — from  questioning  the  validity  of  the  bonds  issued 
in  pursuance  of  such  proceedings. 

But  could  the  Court,  without  the  publication  of  a  new  notice  for  the 
statutory  period,  acquire  jurisdiction  to  examine  and  make  a  valid  con- 
firmation of  proceedings  not  set  out  in  the  petition  on  file  when  the 
original  notice  was  published,  and  to  which  alone  it  referred  ?  Or,  to 
state  the  question  more  precisely,  could  the  Court,  by  giving  notice  of  a 
petition  to  confirm  an  order  for  the  issue  and  sale  of  bonds  to  the  amount 
of  $400,000,  acquire  jurisdiction  to  confirm  an  order  for  the  issuance  of 
bonds  to  the  amount  of  $800,000  ?     We  do  not  think  it  could. 


—  G3  — 

The  only  answer  which  respondent  makes  upon  this  point  to  the  con- 
tention of  appellant,  is  that  he  had  notice  of  the  amended  complaint, 
that  he  demurred  and  answered  to  its  allegations,  and  therefore  cannot 
be  heard  to  object  that  other  persons  had  no  notice. 

Of  course,  in  ordinary  proceedings  intended  to  fasten  a  liability  upon 
particular  defendants,  and  in  which  each  may  be  made  independently 
liable,  this  would  be  a  sufficient  answer.  But  here  the  proceeding  is  in 
rem,  and  its  object  is  to  establish  the  validity  of  the  bonds  as  against  the 
irrigation  district,  and  all  jDersons  interested  in  the  district.  To  be 
efiective  for  the  protection  of  investors  or  of  advantage  to  the  district, 
the  judgment  should  bind  all  the  world.  A  judgment  binding  upon  the 
appellant  alone  must  be  in  effect  a  nullity,  leaving  the  district  in  pre- 
cisely the  same  position  it  was  in  before  the  proceeding  was  commenced. 

Such  being  the  case,  this  appellant,  as  a  land  owner  of  the  district, 
directly  interested  in  the  price  to  be  realized  upon  a  sale  of  its  bonds, 
has  a  right  to  insist  that  the  steps  necessary  to  give  the  Court  jurisdic- 
tion to  pronounce  a  binding  decree  shall  be  regularly  taken. 

And  we  can  see  no  escape  from  the  conclusion  that  this  decree,  so  far 
as  it  attempts  to  confirm  the  order  of  January  3,  1888,  for  the  issuance 
of  $800,000  of  the  bonds  of  the  district,  is  erroneous  and  void  for  want  of 
jurisdiction.  But  we  think  there  is  no  doubt  that  the  Superior  Court 
had  jurisdiction,  acquired  by  full  compliance  of  the  law,  to  examine 
into  and  confirm  the  order  of  July  31,  1889,  for  the  issuance  and  sale  of 
$400,000  of  the  bonds  of  the  district,  and  that  as  to  that  order  the  decree 
may  be  affirmed,  if  it,  and  the  proceedings  upon  which  it  was  founded, 
w^ere  regular  and  legal. 

To  sum  up  this  branch  of  the  case,  we  are  told,  with  reference  to  the 
points  presented  by  appellant,  as  follows: 

The  object  of  the  Act  of  March  16,  1889,  is  to  provide  a  security  for 
investors,  and  promote  the  advantage  of  the  irrigation  districts  by 
enabling  the  Courts  of  the  State  to  render  a  judgment  binding  on  all  the 
world  as  to  the  validity  of  bonds  to  be  offered  for  sale  by  such  districts. 

To  obtain  such  judgment  the  petition  should  set  forth  the  particular 
orders  for  the  issuance  and  sale  of  bonds,  confirmation  of  which  is 
desired.  How  fully  the  preliminary  proceedings  must  be  alleged  is  a 
question  which  does  not  arise  here;  but  with  respect  to  the  organization 
of  the  district,  it  is  only  necessary  that  its  due  organization,  and  the 
election  of  its  first  Board  of  Directors,  should  be  alleged  in  general  terms. 
The  prayer  of  the  petition  is  sufficient  if  it  prays  for  the  examination, 
approval,  and  confirmation  of  the  proceedings  "aforesaid"  for  the  issu- 
ance and  sale  of  bonds  of  the  district,  and  the  notice  is  sufficient  if  it 
states  the  substance  of  such  prayer,  and  in  other  respects  conforms 
to  the  statute.  But  the  decree  of  the  Court  cannot  go  beyond  the  orders 
for  the  issuance  and  sale  of  bonds  which  are  alleged  in  the  petition, 
and  in  case  the  original  petition  is  amended  by  setting  out  other  orders 
for  the  issuance  or  sale  of  bonds,  the  Court  will  not  acquire  jurisdiction 
to  confirm  such  orders  wdthout  the  publication  of  a  new  notice  of  the 
amended  petition. 

A  decree,  however,  confirming  all  the  orders  alleged  in  the  original 
and  amended  petitions  is  not  void  for  want  of  jurisdiction  as  to  the 
orders  set  out  in  the  original  petition,  merely  because  no  new  notice  has 
been  given  of  the  filing  of  the  amended  petition.  If  there  was  due  pub- 
lication of  sufficient  notice  of  the  original  petition,  the  decree  of  the 


—  64  — 

Court  confirming  the  orders  for  the  issuance  and  sale  of  bonds  therein 
specifically  alleged,  and  of  all  the  preliminary  proceedings  affecting 
their  validity,  including  those  for  the  organization  of  the  district  and 
the  election  of  its  first  Board  of  Directors,  is  within  the  jurisdiction  of 
the  Court,  and  can  be  assailed  only  by  those  who  have  contested  the 
proceeding,  and  by  them  only  upon  the  ground  of  prejudicial  errors 
aliecting  their  substantial  rights  which  have  been  duly  excepted  to. 

In  this  case,  accordingly,  we  hold  that  so  much  of  the  decree  as  con- 
firms the  order  for  the  issuance  of  $800,000  of  bonds  of  the  district, 
dated  January  3,  1S88,  is  void,  but  that  it  should  be  affirmed  so  far  as 
it  confirms  the  order  of  July  31, 1889,  for  the  issuance  and  sale  of  '1i400,- 
000  of  the  bonds  of  the  district,  unless  in  conducting  the  proceeding 
the  Superior  Court  committed  error  to  the  prejudice  of  this  appellant. 

The  first  point  urged  by  the  appellant  upon  this  branch  of  the  case  is, 
that  the  Superior  Court  had  erred  in  confirming  the  proceedings  of  the 
Board  of  Supervisors  in  organizing  the  district,  because  said  Board,  by 
including  therein  the  city  of  Modesto,  had  violated  the  following  provis- 
ion of  the  Wright  Law:  "Nor  shall  any  lands  which  will  not,  in  the 
judgment  of  said  Board,  be  benefited  by  irrigation  by  said  system,  be . 
included  within  such  district."     (Stats.  1887,  p.  30,  Sec.  2.) 

It  appears  from  the  record  that  the  district,  as  originally  organized, 
'contained  about  one  hundred  and  eight  thousand  acres  of  land,  includ- 
ing the  city  of  Modesto,  a  town  covering  about  two  thousand  acres,  and 
having  about  three  thousand  inhabitants  and  about  six  hundred  dwell- 
ing houses,  besides  shops,  stores,  etc. 

One  proposition  of  the  appellant  seems  to  be  that  the  mere  fact  of  the 
corporate  existence  of  a  town  or  city,  though  situate  in  the  midst  of  a 
district  susceptible  of  irrigation  by  one  system,  necessarily  deprives  the 
Board  of  Supervisors  of  the  county  of  the  power  to  include  any  of  the 
lands  within  the  corporate  limits  of  such  city  or  town  in  an  irrigation 
district.  We  say  this  seems  to  be  a  proposition  of  the  appellant, 
because,  although  it  is  not  expressly  stated  in  terms,  it  appears  to  be 
necessary  to  sustain  his  contention;  for  if  it  lies  within  the  discretion 
of  the  Board  to  include  in  an  irrigation  district  any  part  of  the  lands  of 
a  town  or  city  upon  the  ground  that  in  their  judgment  such  part  will 
be  benefited  by  irrigation  under  the  system  proposed,  and  if  the  judg- 
ment of  the  Board  upon  the  question  of  benefits  is  conclusive  of  the 
fact — as  we  shall  show  that  it  is — there  is  no  ground  upon  which  a 
Court  can  say  that  an  order  including  all  the  lands  of  a  city  or  town  in 
such  district  is  void. 

The  idea  of  a  city  or  town  is  of  course  associated  with  the  existence  of 
streets,  to  a  greater  or  less  extent  lined  with  shops  and  stores,  as  well  as 
of  dwelling  houses,  but  it  is  also  a  notorious  fact  that  in  many  of  the 
towns  and  cities  of  California  there  are  gardens  and  orchards  inside  the 
corporate  boundaries  requiring  irrigation.  It  is  equally  notorious  that 
in  many  districts  lying  outside  of  the  corporate  limits  of  any  city  or 
town  there  are  not  only  roads  and  highways,  but  dwelling  houses,  out- 
houses, warehouses,  and  shops.  With  respect  to  these  things  which 
determine  the  usefulness  of  irrigation  there  is  only  a  difference  of  degree 
between  town  and  county.  The  advantages  of  irrigation  to  a  town  like 
Riverside,  in  San  Bernardino  County,  for  instance,  no  one  could  deny, 
and  the  difference  between  such  a  town  and  those  places  where  irrigation 
would  be  as  manifestly  out  of  place  are  not  marked  by  any  hard  and 


—  65  — 

fast  line  which  would  enable  a  Court  to  lay  clown  a  rule  of  discrimina- 
tion. The  question  whether  in  any  particular  case  a  town  will,  as  a 
Avhole,  be  benefited  directly  by  the  application  of  water  for  irrigation  is 
in  its  nature,  and  under  existing  conditions  must  remain  a  question  of 
fact  to  be  decided  by  that  tribunal  to  whose  discretion  it  had  been  com- 
mitted by  the  Legislature.  It  is  very  certain  that  the  Legislature 
intended  that  cities  and  towns  should  in  proper  cases  be  included  in 
irrigation  districts,  for  the  Act  expressly  provides  for  the  assessment  and 
taxation,  according  to  their  value,  not  only  of  city  and  town  lots,  but  also 
of  the  improvements  thereon.  (Stats.  1887,  p.  37.  Sees.  18  et  seq.)  And 
this  feature  of  the  law  was  made  an  argument  against  its  constitution- 
ality in  the  case  of  Turlock  Irrigation  District  vs.  Williams,  in  which  its 
constitutionality  was  affirmed.  (76  CaL  360.)  Such  having  been  the 
intention  of  the  Legislature,  as  is  clearly  apparent,  and  it  being  equally 
clear  and  notorious  as  matter  of  fact  that  there  are  cities  and  towns 
which  not  only  may  be  benefited  by  irrigation,  but  actually  have  in 
profitable  use  extensive  systems  for  irrigating  land  within  their  corpo- 
rate limits,  it  cannot  be  denied  that  the  Supervisors  of  Stanislaus  County 
had  the  power  to  determine  that  the  lands  comprising  the  city  of  Modesto 
would  be  benefited  by  irrigation,  and  might  be  included  in  an  irrigation 
district. 

There  was,  it  appears,  a  large  majority  of  the  electors  of  Modesto  in 
favor  of  such  inclusion,  but  the  appellant  and  others  owning  buildings 
objected  to  being  included  in  the  district,  on  the  ground  that  their  lots 
covered  with  stores,  shops,  and  warehouses  would  not  be  benefited.  If 
this  objection  was  good  ground  for  excluding  the  city  from  the  district, 
it  is  probable  that  no  district  could  ever  be  successfully  organized,  for  in 
the  nature  of  things,  an  irrigation  district  must  cover  an  extensive  tract 
of  land,  and  no  matter  how  purely  rural  and  agricultural  the  community 
may  be,  there  must  exist  here  and  there  within  its  limits  a  shop  or 
warehouse  covering  a  limited  extent  of  ground  that  can  derive  no  direct 
benefit  from  the  use  of  water  for  irrigation.  Here,  again,  the  ditference 
between  town  and  county  is  one  of  degree  only,  and  a  decision  in  the 
interest  of  shop  owners  in  towns,  that  their  lots  cannot  be  included  in 
an  irrigation  district,  would  necessarily  cover  the  case  of  the  owner  of 
similar  property  outside  of  a  town. 

It  is  nowhere  contended  by  the  appellant  that  in  organizing  irrigation 
districts  it  is  the  duty  of  the  Supervisors  to  exclude,  by  demarkation, 
every  minute  tract  or  parcel  of  land  that  happens  to  be  covered  by  a 
building  or  other  structure  which  unfits  it  for  cultivation,  and  certainly 
the  law  could  not  be  so  construed  without  disregarding  many  of  its 
express  provisions,  and  at  the  same  time  rendering  it  practically  inop- 
erative. 

We  construe  the  law  to  mean  that  the  Board  may  include  in  the 
boundaries  of  the  district  all  lands  which,  in  their  natural  state,  would 
be  benefited  by  irrigation  and  are  susceptible  of  irrigation  by  one  sys- 
tem, regardless  of  the  fact  that  buildings  or  other  structures  may  have 
been  erected  here  and  there  upon  small  lots,  which  are  thereby  rendered 
unfit  for  cultivation,  at  the  same  time  that  their  value  for  other  purposes 
may  have  been  greatly  enhanced. 

So  construed,  we  can  see  no  objection  to  the  law  upon  constitutional 
grounds  or  grounds  of  expediency. 

As  to  owners  of  such  property,  it  seems  reasonable  to  assume  that 
5" 


—  66  — 

they  must  participate,  indirectly  at  least,  in  any  benefits  the  district 
may  derive  from  the  successful  inauguration  of  a  system  of  irrigation; 
but  aside  from  this,  the  law  contains  an  express  provision  designed  to 
secure  to  them  a  benefit  exactly  corresponding  to  any  burden  to  which 
they  may  be  subjected,  and  in  that  respect  is  far  more  equitable  than 
many  of  the  assessment  laws  which  have  been  upheld  here  and  else- 
where. The  provision  referred  to  is  this:  Every  taxpayer  of  the  dis- 
trict receives  a  portion  of  all  the  water  distributed  exactly  equivalent 
to  his  proportion  of  the  total  tax  levied,  and  this  water  is  his  to  use  or 
to  sell,  as  he  may  elect,  so  that  if  his  lot  is  not  fit  for  cultivation,  he, 
nevertheless,  gets  a  full  equivalent  for  the  tax  assessed  to  him.  (Stats. 
1887,  p.  34,  Sec.  11.) 

Upon  these  grounds,  we  hold  that  a  city  or  town,  or  a  portion  thereof, 
may,  in  a  proper  case,  be  included  in  an  irrigation  district. 

As  to  what  is  or  what  is  not  a  proper  case  for  such  inclusion,  the 
decision  of  that  question  has  been  committed  to  the  several  Boards  of 
Supervisors,  whose  discretion  is  not  subject  to  the  control  of  any  Court. 
Upon  matters  affecting  their  jurisdiction,  the  orders  of  the  Board  of 
Supervisors  may  be  open  to  review,  but  upon  the  question  of  fact,  as  to  . 
what  lands  will  or  will  not  be  benefited  by  irrigation,  their  decision  is 
final  and  conclusive.     (See  Section  2  of  the  Act,  Statutes  of  1887,  p.  30.) 

The  foi'mation  of  irrigation  districts  is  accomplished  by  proceedings 
so  closely  analogous  to  those  prescribed  for  the  formation  of  swamp  land 
reclamation  districts,  that  the  decisions  with  respect  to  the  latter  are 
authority  as  to  the  former,  and  we  cite  as  conclusive  of  this  point:  Peo- 
ple  vs.  Hagar,  52  Cal.  181;  id.,  66  Cal.  60.  Many  other  decisions  to  the 
same  effect  are  cited  in  the  briefs  of  counsel,  but  we  deem  it  unnecessary 
to  refer  to  them  here. 

The  Superior  Court  did  not  err,  therefore,  in  refusing  to  allow  the 
appellant  to  introduce  evidence  for  the  purpose  of  proving  that  his  and 
other  lots  in  the  city  of  Modesto  would  be  benefited  by  the  proposed 
system,  or  any  system  of  irrigation.  Nor  did  the  Court  err  in  refusing 
the  offer  of  appellant  to  prove  that  the  Board  of  Supervisors  wrongfully 
included  the  city  of  Modesto  in  the  irrigation  district,  for  the  purpose  of 
carrying  out  the  scheme  of  organization  against  the  wishes  of  the  farmers 
outside  the  city. 

To  entitle  the  appellant  to  prove  that  the  Board  and  its  members,  well 
knowing  that  the  lands  of  the  city  would  not  be  benefited  by  irrigation, 
had,  nevertheless,  included  them  for  the  corrupt  purpose  suggested,  and 
not  in  the  exercise  of  their  honest  judgment  and  discretion,  the  facts 
constituting  the  fraud  should  have  been  fully  pleaded  in  the  answer. 
But  no  such  facts  as  he  offered  to  prove  were  pleaded. 

It  is,  indeed,  alleged  that  the  order  including  the  city  was  not  made  in 
the  exercise  of  the  judgment  and  discretion  of  the  Board,  but  contrary 
thereto.  This  allegation  is  part  of  a  separate  defense,  in  which  it  is 
coupled  with  other  allegations,  going  to  show  that  the  lands  of  the  city 
would  not  be  benefited  by  irrigation,  but  it  is  nowhere  alleged  that  the 
Board,  or  any  of  its  members,  actually  believed  at  the  time  they  offered 
such  lands  to  be  included  in  the  district,  that  they  would  not  be  bene- 
fited. The  Court,  therefore,  properly  sustained  the  objection  that  the 
offered  evidence  was  immaterial. 

As  to  all  such  matters  as  were  alleged  in  the  answer,  the  evidence 
shows  that  the  Board  of  Supervisors  acted  with  the  utmost  deliberation 


—  67  — 

upon  the  petition  for  the  organization  of  the  district;  that  they  heard 
and  considered  numerous  objections,  and  the  testimony  otiered  in  sup- 
port of  them,  and  did  not  make  their  final  decision  until  the  time  allowed 
for  deciding  had  nearly  elapsed. 

The  next  point  urged  for  appellant  arises  out  of  the  fact  that  after 
the  original  organization  of  the  district  including  one  hundred  and 
eight  thousand  acres,  and  after  the  proposition  to  issue  $800,000  of 
bonds  had  been  ratified  by  a  vote  of  the  electors  of  the  district,  and 
after  the  resolution  of  the  Directors  to  issue  the  bonds  to  that  amount, 
the  Board  of  Supervisors  had  ordered  a  portion  of  the  district,  embrac- 
ing twenty-eight  thousand  acres,  to  be  cut  oft'  and  excluded  therefrom. 

It  is  contended  that  this  order,  which  was  one  of  the  proceedings 
confirmed  by  the  Superior  Court,  was  void  for  want  of  jurisdiction  in 
the  Board  to  make  it. 

The  proceedings  for  the  exclusion  of  lands  from  an  irrigation  district 
of  which  they  form  a  part,  are  authorized  and  prescribed  by  another 
Act  amendatorv  and  supplemental  to  the  Wright  Act,  approved  Feb- 
ruary 16,  1889."    (Stats.  1889,  p.  21.) 

This  Act  provides  for  the  filing  of  a  petition  for  exclusion  by  owners 
of  lands  within  the  district,  notice  of  the  filing  of  such  petition,  and 
time  and  place  of  hearing;  the  presentation  of  objections  by  parties 
interested,  and  in  certain  cases  for  a  submission  of  the  question  of  exclu- 
sion to  a  vote  of  the  electors  of  the  district. 

Among  other  things  it  is  provided  that  if  there  be  any  outstanding 
bonds  of  the  district,  no  order  of  exclusion  can  be  made  without  the 
consent,  in  writing,  of  the  holders  of  such  bonds,  acknowledged  as  deeds 
of  conveyance  are  required  to  be  acknowledged. 

It  is  contended  by  the  appellant  that  at  the  time  the  petition  for  the 
exclusion  of  the  twenty-eight  thousand  acres  was  filed,  and  during  the 
greater  portion  of  the  time  the  notice  of  the  hearing  was  being  pub- 
lished, there  were  outstanding  bonds  of  the  district,  and  that  no  written 
consent  of  the  holders  of  said  bonds  was  ever  given  to  the  making  of 
the  order. 

Bvit  the  fact  is  there  never  were  any  outstanding  bonds  of  thie  district. 
Its  bonds,  as  above  stated,  had  more  than  once  been  offered  for  sale,  and 
at  one  time  a  l)id  for  $50,000  of  the  bonds  had  been  made  by  Tucker  & 
Parley,  and  formally  accepted  by  the  Directors. 

But  the  evidence  shows  that  at  the  time  of  the  making  and  accepting 
of  this  bid  there  was  an  understanding  between  the  bidders  and  the 
Directors  that  the  former  were  not  to  be  held  to  their  ofter,  unless  they 
could  succeed  in  negotiating  a  sale  of  the  bonds  to  some  outside  party, 
and  as  they  failed  to  do  so,  the  bonds  had  never  been  issued  or  paid  for. 
And  prior  to  the  making  of  the  order  of  exclusion,  Tucker  &  Perley 
had,  upon  their  written  request,  been  released  from  their  offer  b}'  formal 
resolution  of  the  Board  of  Directors. 

Such  being  the  case,  it  is  clear  that  there  had  not  only  never  been  any 
outstanding  bonds  of  the  district,  but  that  at  the  date  of  the  order  of 
exclusion  there  was  not  even  a  subsisting  contract  for  the  issuance  of 
the  bonds. 

We  cannot  perceive,  therefore,  that  the  Court  committed  any  error  in 
decreeing  the  validity  of  the  order  of  exclusion.  But,  even  if  the  decree 
had  been  in  that  respect  erroneous,  it  is  by  no  means  clear  that  it  would 
have  been  material.     For  the  order  of  exclusion  is  not  one  of  the  orders 


—  as- 
set out  in  the  petition  of  the  respondent,  confirmation  of  which  is  prayed. 
It  is  alleged,  for  the  first  time,  in  the  answer  of  appellant,  and  its 
invalidity  charged  as  matter  of  defense,  and  as  a  ground  for  refusing 
confirmation  of  the  order  for  the  issuance  and  sale  of  bonds.  It  is, 
therefore,  material  only  so  far  as  its  validity  and  invalidity  afi'ects  such 
order  for  the  issuance  and  sale  of  bonds,  and  we  do  not  understand  how 
that  order  would  be  any  more  or  less  valid,  whether  the  order  of  exclu- 
sion was  legal  or  not. 

The  Superior  Court  did  not  err  in  holding  that  the  $400,000  of  bonds 
ordered  to  be  issued  and  sold  by  the  order  of  July  31,  1889,  was  part  of 
the  issue  of  1800,000  proposed  and  voted  and  ordered  issued  January 
3,  1888.  The  evidence  fully  sustains  the  finding,  and  there  is  nothing 
really  opposed  to  it  except  the  mere  fact  that  the  resolution  of  the  Board 
of  Directors  does  not  in  express  terms  couple  the  issue  and  sale  of  the 
$400,000  of  bonds  with  the  previous  proceedings  authorizing  the  issuance 
of  $800,000  of  bonds.  The  fact  that  when  the  proposition  for  the  issu- 
ance of  $800,000  was  ratified  by  a  vote  of  the  electors,  the  plan  in  con- 
templation was  to  bring  water  from  the  Stanislaus  River  sufficient  to 
irrigate  one  hundred  and  eight  thousand  acres,  and  that  the  order  for 
the  issuance  and  sale  of  $400,000  was  made  after  a  change  in  the  dis- 
trict and  a  change  of  plan  contemplating  the  bringing  of  the  water  from 
the  Tuolumne  River  sufficient  only  for  the  irrigation  of  eighty  thousand 
acres,  does  not  destroy  the  relation  between  the  last  order  for  the  sale  of 
bonds  and  the  original  authority  to  issue  them.  The  authority  to  issue 
bonds  is  wholly  independent  of  the  source  of  supply  of  water  or  any 
plans  for  obtaining  it.  There  is  nothing  in  the  law  to  prevent  the 
Directors  from  changing  their  plans  in  this  respect  whenever  they  find 
it  to  the  advantage  of  the  district  to  do  so.  And  any  order  they  may 
make  for  the  issuance  and  sale  of  bonds  must  be  referred  to  the  proceed- 
ings by  which  alone  such  order  is  authorized,  whether  they  are  expressly 
referred  to  or  not. 

The  Superior  Court  did  not  err  in  refusing  to  try  the  case  de  novo  after 
the  filing  of  the  amended  petition.  All  the  evidence  that  had  been 
taken  was  applicable  to  the  issues  formed  by  the  amended  pleadings, 
and,  indeed,  the  principal  object  and  only  effect  of  the  amendments  to 
the  petition  was  to  make  it  conform  to  the  evidence  already  in.  It 
would,  therefore,  have  been  a  mere  waste  of  time,  as  well  as  a  most 
unusual  practice,  to  have  introduced  anew  the  evidence  already  before 
the  Court. 

It  is  contended  that  the  Board  of  Directors  never  had  any  authority 
to  issue  any  bonds  of  the  district,  because  no  legal  notice  was  given  of 
the  special  election  at  which  the  proposition  to  issue  bonds  was  sub- 
mitted to  a  vote  of  the  electors. 

The  point  of  this  objection  is  that  the  general  notice  prescribed  by 
Section  5  of  the  Wright  Act  (Stats.  1887,  p.  31)  was  not  posted  in  the 
office  of  the  Board.  But  this  was  a  special  election  held  under  Section 
15  of  the  Act,  page  35,  and  the  notices  prescribed  by  that  section  were 
duly  given.  As  we  construe  the  law,  that  section  applies  to  such 
special  elections,  to  the  exclusion  of  Section  5. 

It  is  contended  that  this  judgment  cannot  be  sustained,  because  the 
proceeding  was  commenced  before  any  bonds  had  been  issued.  Accord- 
ing to  appellant's  construction  of  the  supplemental  Act,  no  proceeding 
can  be  commenced  under  it  until  bonds  have  been   actually  issued. 


—  69  — 

There  may  be  something  in  the  literal  terms  of  the  title,  and  one  or  two 
clauses  of  the  Act,  to  countenance  this  construction,  but,  read  as  a 
whole,  and  with  reference  to  its  manifest  purpose  and  the  evil  it  was 
intended  to  correct,  it  must  be  construed  as  allowing  the  proceeding  to 
be  commenced  as  soon  as  any  resolution  has  been  adopted  for  the  issue 
and  sale  of  bonds. 

Finally,  it  is  contended  by  appellant  that  the  authority  originally 
granted  to  the  Directors  to  issue  bonds  to  the  amount  of  $800,000,  at 
the  time  when  the  district  embraced  one  hundred  and  eight  thousand 
acres,  ended  with  the  order  excluding  twenty-eight  thousand  acres;  for, 
he  says,  even  if  the  Legislature  intended  to  bind  the  new,  or  reconsti- 
tuted, district,  by  a  vote  of  the  old  district,  the  law  to  that  extent 
Avould  be  unconstitutional.  (Citing  Sections  11,  12,  and  13  of  Article 
XI  of  the  Constitution  of  California,  and  Section  10,  Article  I  of  the 
Constitution  of  the  United  States.) 

If,  after  this  district  had  actually  incurred  a  debt  by  the  issuance  of 
bonds,  a  portion  of  the  lands  of  the  district  had  been  excluded  without 
the  consent  of  the  owners  of  the  lands  remaining,  the  argument  of 
appellant  on  this  point  would  have  had  much  force,  and  would  at  least 
have  been  deserving  of  serious  consideration.  But  the  facts  being  that 
at  the  time  of  the  exclusion  of  twenty-eight  thousand  acres  from  this 
district  it  had  no  debt,  and  that  after  notice  of  the  proceeding  no  objec- 
tion was  made  to  such  exclusion  by  any  person,  there  is  no  basis  for  any 
claim  of  injustice  or  violation  of  constitutional  rights.  The  identity  of 
the  district  was  not  destroyed  by  the  exclusion  of  a  part  of  its  lands. 
Those  who  remain  in  the  district  will  receive  all  the  benefits  of  the 
expenditures  of  the  proceeds  of  its  bonds;  they  will  not  be  compelled 
to  pay  for  anything  for  the  benefit  of  others.  Nor  is  there  anything 
in  the  law  to  compel  the  Directors  of  the  district,  as  constituted,  to 
expend  the  whole  amount  of  bonds  authorized,  if  such  amount  shall  not 
be  needed.  The  provision  of  Section  15  for  the  issuance  of  the  bonds 
voted  is  merely  directory,  leaving  it  in  the  discretion  of  the  Board  to 
issue  and  sell  such  amount  of  bonds,  within  the  amount  voted,  and  at 
such  times,  as  they  may  find  expedient. 

Upon  a  review  of  the  whole  case,  we  conclude  that  all  the  proceedings 
examined,  approved,  and  confirmed  by  the  Superior  Court  were  regular 
and  valid,  but  that  the  Court  did  not  acquire  jurisdiction  to  confirm  the 
order  or  resolution  of  January  3,  1888,  for  the  issuance  of  $800,000  of 
the  bonds  of  the  district  in  this  proceeding.  That  order,  however,  is 
not  essential  to  the  validity  of  the  order  for  the  issuance  and  sale  of 
$400,000  of  bonds,  which  depends  upon  and  is  sustained  by  the  other 
proceedings  for  the  organization  of  the  district,  and  the  issuance  of 
bonds. 

It  is  therefore  ordered  that  the  judgment  and  decree  of  the  Superior 
Court  be  and  the  same  is  hereby  modified  by  striking  out  so  much 
thereof  as  confirms  said  order  of  January  3,  i888,  for  the  issuance  of 
$800,000  of  bonds  of  respondent,  and,  as  so  modified,  the  judgment  and 
decree,  as  well  as  the  order  overruling  appellant's  motion  for  a  new 
trial,  are  affirmed.  • 

McFarland,  J.,  Paterson,  J.,  and  Siiarpstein,  J.,  concurred. 


INDEX. 


APPEALS-  Page.    Section. 

On  petition  to  confirm  acts  of  Directors - 29  5 

ASSESSMENTS— 

Board  of  Directors  must  equalize - 13  20 

Book  of,  of  what  evidence,-- 17  SI 

Collector,  duty  of  in  receiving  payments 14  24 

Collector  must  give  notice  when  payable--- - -.-  14  24 

Delinquent,  amount  to  be  collected  on 15  26 

Delinquent  list,  notice  of  sale 15  25 

Delinquent  list,  what  to  contain 14,15  25 

Delinquent,  notice  of  sale .-- - --  15  25 

Delincjuent,  publication  of.. 14,  16  25 

Deliniiuent  sale,  certificate  of ---  16,  16         27,  28 

Delinciuent  sale,  Collector's  book  open  to  inspection 16  28 

Delinquent  sale,  deed  of  wiiat  evidence -  17  30 

Delinquent  sale,  deed  what  should  recite --- _  17  30 

Delincjuent  sale,  designating  part  desired  to  be  sold 16  27 

Delinquent  sale,  district  may  purchase,  when 15,  16  27 

Delinquent  sale,  district  purchasing,  rights  of 16  27 

Delinquent  sale,  how  conducted 15  26 

Delinquent  sale,  lien  passes  to  purchaser 16  28 

Delinquent  sale,  misnomer  or  mistake  does  not  affect  purchaser---  17  32 

Delinquent  sale,  purchaser  entitled  to  deed  when 16,  17  29 

Delinquent  sale,  redemption  law  made 16,  17  29 

Delinquent  sale,  redemption  within  what  time  may  be  made---  --  16  29 

Delinquent  sale,  resale  for  non-payment  of  bid 15  27 

Delinquent  sale,  title  of  purchaser-- 17  30 

Delinquent  sale,  within  what  time  to  be  made 15  26 

Delinquent,  when ---  14  24 

Duty  of  Directors  in  equalizing -.. --  13  21 

How  collected  where  Collector  or  Treasurer  refuses  to  act 13  22 

How  made 12  18 

How  made  and  levied  where  Directors  refuse  to  act 13  22 

Levy  and  collection  of,  need  not  follow  Constitution 30 

Levying  where  bonds  insufficient -  H  15 

Lien  against  property 14  23 

Must  be  paid  into  District  Treasury --- 13  22 

Notice  of  meeting  of  Directors  to  equalize 13  20 

Notice  of  timeof  delinciuency 14  24 

Property  which  has  escaped  prior  assessments 12  18 

Refunding  to  persons  whose  lands  are  included ---  27,  28  13 

Secretary  must  compute . 13  22 

Special,  how  levied 20  41 

When  to  be  completed-.-  13  20 

ASSESSOR— 

Bond  of.-- - 5  4 

ASSIGNMENT— 

Right  of  owner  to  water  may  be  assigned 8  11 

BONDS— 

Approval  of - "  ^ 

Bondholders,  assent  of  to  exclusion  of  lands 26  6 

Condition  different  from  statute  requirement  does  not  avoid  when.  37 

Contractor  must  give  bond - 18  35 

Denomination  and  form -.- - --■ 10  15 

Drawn  so  as  to  be  each  payable  in  installments,  are  valid 38 

Exclusion,  effect  of  on  authority  to  issue 52 

Formalities  necessary  in  selling..- -  11,  12  16 

Interest  on - ■ 10  1^ 

Lien  for,  preferred  to  that  for  subsequent  issues 14 

New,  allowing  to  be  filed  for  defective  and  continuing  hearing 37 

New,  exchanging  for  old  issue - - - H 

New,  may  be  issued  in  place  of  old  issue 11 


23 


Notice  of  sale,  contents,  and  publication 11,  12  16 

Payable  from  assessments  levied ---        12 

Question  of  issuance  may  be  submitted  to  electors 10 

Recording  and  filing-- - - 


17 
15 
6  4 


—  72  — 

BONDS — Continued.  Page.    Section. 

Record  of  sale  of,  must  be  kept 10  15 

Redemption,  bids  for 17, 18  34 

Redemption,  investment  where  no  bids  made 18  34 

Redemption,  notice  of 17  34 

Redemption,  when  may  be  redeemed...   .-. 17  34 

Required  of  petitioners,  reference  to  petition 37 

Sale  must  be  to  hi^licst  iiidder 21  16 

Sale,  not  for  less  tlian  ninety  per  cent  of  face  value 12  16 

When  payable 10  15 

BOUNDARIES— 

Change  shall  not  affect  rights  or  contracts 22,25  1 

Conflicting,  which  prevail 37 

Description  in  the  order  establishing  boundaries 37 

Effect  of  inclusion  or  exclusion...  24,27  9,10 

Exclusion  creates  vacancj^  m  ottice  of  Director,  when 27  10 

Exclusion,  effect  of  on  authority  to  issue  bonds... _.  52 

Exclusion  of  lands,  assent  of  bondholders 26  6 

Exclusion  or  inclusion  of  lands  does  not  affect  rights  or  contracts.  22,  25  1 

Filing  petition  to  change  among  minutes  of  Board 24  11 

Lands  may  be  excluded  from  district 25  1 

Land  not  benefited  must  not  be  included. 4  2 

May  be  changed 22,  25  1 

Notice  of  petition  to  include  contiguous  lands 22,  23  3 

Order  changing  to  be  filed :  24  10 

Order  for  excluding,  filing  of 27  9 

Order  for  excluding  land 27  8 

Owners  may  file  petition  to  include  lands ■    22  2 

Owners  may  file  petition  to  exclude  lands.. 25  2 

Parol  evidence  competent  to  establish 37 

Petition  to  exclude  lands 25  2 

Petition  to  exclude  lands,  effect  of,  and  of  failure  to  object 26  4 

Petition  to  exclude  lands,  hearing  of 26  4 

Petition  to  exclude  lands,  notice  of 25  3 

Petition  to  exclude,  right  to  grant  or  deny 26  5 

Petition  to  include  contiguous  land 22  2 

Petition  to  include  contiguous  lands,  assessment  on  granting 23  5 

Petition  to  include  contiguous  lands,  effect  of,  and  of  faiture  to 

object 23  4 

Petition  to  include  contiguous  lands,  granting  against  objection  of 

owners 23  7 

Petition  to  include  contiguous  lands,  hearing  of 23  4 

Petition  to  include  contiguous  lands  may  be  rejected 23  6 

Petition  to  include  contiguous  lands,  order  on  granting 23  6 

Power  of  Su])ervisors  to  change,  establish,  and  define 3,  4  2 

Rules  for  construction 37 

COLLECTORS— 

Bond  of 5  4 

Fee  for  making  deed. _  ■- 17  29 

Settlement  of,  for  collections,  with  Secretary 17  33 

CONFIRMATION— 

Appeal  on  petition  to  confirm  acts  of  Directors 29  5 

Costs  on  petition  to  confirm  acts  of  Directors 29  5 

Decree  confirming  all  orders,  alleged  effect  where  amended  petition 

filed  without  notice 51 

Directors  may  begin  proceedings  to  confirm  acts 28  1 

Errors  which  must  be  designated  on  petition  for 29  5 

Evidence  that  city  lots  included  for  fraudulent  purposes 51 

Evidence  that  city  lots  included  were  not  benefited 51 

Judgment  of,  based  on  publication  of  notice,  conclusiveness  of 45 

Jurisdiction  and  power  of  Court  on  petition  to  confirm 29  5 

New  trial  on  petition  to  confirm 29  4 

Notice  by  publication  or  posting  of  petition  for,  is  sufficient 45,  51 

Notice  of  petition  for,  need  not  state  prayer  of  petition 51 

Notice  of  petition  for,  what  sufficient 51 

Notice  of  petition  to  confirm 28  3 

Not  refused,  because  land  excluded  where  no  bonds  issued 51 

Personal  notice  to  members  of  district  is  unnecessary 45,  51 

Petition  for,  lies  before  bonds  actually  issued ^' 52 

Petition  to  confirm  acts,  may  be  filed' 26  2 

Petition  to  confirm.  Court  shall  fix  time  for  hearing 28  3 

Petition  to  confirm,  failure  to  answer  or  deny ..' 28,  29  4 

Petition  to  confirm,  one  interested  may  answer  or  demur 28  4 

Petition  to  confirm,  procedure  governing  answer  and  demurrer 28,  29  4 

Petition  to  confirm,  what  should  state 28  2 


—  73  — 


CONFIRMATION— Continued.  Page. 

Proceedings  not  set  out  in  petition 51 

Refusal  of  trial  de  novo  on  filing  amended  petition,  not  error  when.  51 

What  shall  be  determined  on  hearing  petition  for 29 

COxVSTlTUTlONAL  LAW— 

Statute  for  organization  of  irrigation  districts  is  valid 30,  45 

CONTRACTS— 

Bond  contractor  must  give 18 

Debts  not  authorized,  validity  of 20 

Notice  calling  for  bids  to  construct  works --  18 

Officers  must  not  be  interested  in. 20 

Punishment  of  officer  interested  in...  20 

To  consti-uct  works,  to  whom  awarded 18 

COSTS— 

On  petition  to  confirm  acts  of  Directors 29 

COUPONS— 

Treasurer  must  pay,  on  presentation 17 

CROSSINGS— 

Right  of  wav  of  irrigation  works 19 

DIRECTORS— 

Bonds  may  be  used  in  payment  on  purchase  of  lands  or  water  right.  9 

By-laws,  rules,  and  regulations  of,  must  be  printed 8 

Cannot  contract  debts  not  authorized 20 

Compensation  of 19 

Debts  not  authorized,  validity  of. 20 

Exclusion,  when  vacates  office  of  Director 27 

May  be  elected  from  district  at  large,  when 4,  5 

May  construct  dams  and  reservoirs 9 

May  enter  lands  to  survey  and  locate  works 9 

May  hold  and  manage  property  of  district 9 

May  maintain  and  defend  suits _ 9 

May  purchase  or  condemn  lands  and  water  rights 9 

May  sell  bonds  to  meet  requirements...     11 

May  take  conveyances  in  name  of  district 9 

Meetings,  collateral  attack  on 37 

Meetings  must  be  public .....  8 

Meetings,  quorum 8 

Meeting,  special,  how  ordered 8 

Meeting,  special,  order  for,  what  to  contain 8 

Meetings,  special,  what  business  may  be  transacted  at 8 

Meetings,  when  and  how  often  to  be  held 8 

Meetings,  when  regular 37 

Must  keep  waters  Ho  wing  to  full  capacity  of  ditch 21 

Must  levj^  assessments  to  meet  interest  aind  principal . 13 

Must  not  be  interested  in  contracts 20 

Number,  changing  from  five  to  three 4,  5 

Number  of ---  4,  5 

One  to  be  elected  from  each  division  in  district 4 

Powers  of 8 

Power  to  deposit  funds  with  County  Treasurer 18 

Procedure  in  case  of  continuation  of  lands  or  water  right 9 

Records  to  be  kept  open 8 

Three  members  must  concur 8 

Time  of  meeting  and  organization 8 

Vacancy,  Supervisors  may  fill 8 

ELECTIONS— 

Ballots,  form  of  and  what  to  contain 4,  6 

Ballots,  when  and  how  counted 6,  7 

Boards  of,  must  appoint  Clerks  of  Elections 6 

Canvassing  returns,  time  of 7 

Canvass  of  returns  must  be  public 7 

Canvass  of  votes  cast 4 

Contesting  because  vote  not  properly  counted 7 

Certificates  of  votes  cast,  drawing  up... _. 7 

Certificate  of  votes  cast,  Inspector  must  retain  one 7 

Declaring  election  of  officers. 7,  8 

Declaring  organization  where  two-thirds  vote  in  favor. 5 

Election  Board,  what  officers  constitute... 6 

How  conducted 4 

Inspector  is  Chairman  of  Election  Board 6 

Inspector,  powers  of 6 

Irregularity  in  form  of  list,  tally  paper,  or  certificate 7 

Notice  of  election  for  organization 4 

Notice  of  elections  held  after  organization... 6 

Notice  of  publication  of 4 


Section. 


35 
42 
35 
40 
40 
35 


34 


12 
11 
42 
39 
42 
10 
2,3 
12 
12 
13 
14 
12 
16 
14 

12 
12 

12 
12 
12 
12 

44 

22 

40 

2,  3 

2,3 

2 

11,  12 

36 

12 

12 

12 

11 

10 

2,  3,  7 
7,  8 
6 
9 
9 
3 


10 
3 
5 
3 
6 
6 


—  74  — 

elections-Continued.  y-age.    Section. 

JNotice  of,  what  to  contain 4  2 

Oaths,  who  may  administer ]"'  6  6 

Officers,  electors  may  appoint  on  failure  to  appoint  or  attend".  6  5 

Officers  must  take  oath _ -  6  6 

Officers  of,  appointment  of..  ""          _'""  g  5 

Polls,  how  long  to  be  kept  open "l."ll"][    l.l  6  6 

Precincts,  duty  to  establish .  .          "5  3 

Precincts,  established  where  contiguous  lands  added.  "  "'            ""  24  13 

Precincts,  when  to  be  established   .  .  _  33 

Preservation  of  ballots  and  election  papers .........  l"  7  8 

Publication  of  proclamation,  number  of  insertions "^     '  33 

Pu  blication ,  slight  mistakes  in  will  n  ot  vitiate '  37 

Qualifications  of  electors. 4  2 

Eeasonable  publications,  instances  of "'_"I"1"1^".  38 

Sealing  ballots  and  papers __/_        ..  7  8 

Special,  for  issuing  bonds,  form  of  ballots ....        '.'.'     "  10  15 

Special,  for  issuing  bonds,  irregularities  will  not  avoid 10  15 

Special,  for  issuing  bonds,  may  be  called _.  9  10  15 

Special,  for  issuing  bonds,  notice  of "_'  '10  15 

Special,  for  special  assessment,  ballots ......  20  41 

Special,  for  special  assessment,  notice  of ......  20  41 

Special,  for  special  assessment,  two-thirds  vote  necessary'I"!^  20  41 

Special,  to  levy  special  assessment _"  20  41 

Statement  of  result  must  be  entered  in  minutes  of  Board V.  7  10 

Statement  of  result,  what  must  show .  7  10 

Time  of  holding j .........        ^        '  .5  3 

To  determine  whether  lands  sliaUbe  excluded"!]. !"."!. 11.^]^. I""  26  7 

To  determine  whether  land  be  excluded,  how  conducted '  27  7 

To  determine  whether  land  be  excluded,  notice  of... 26,  27  7 

To  determine  whether  land  be  excluded,  proceedings  wliere  major- 
ity favors ___   ...  27  8 

To  determine  whether  land  be  included,  how  conducted."!. '...'.".'-."  23,  24  8 
To  determine  whether  land  be  included,  proceedings  where  major- 
ity favors _  24  9 

To  (ietermine  whether  land  be  included,  notice  of .!!.'.!!  .!!!!!!  "'  23  24  8 

Validity  not  to  be  contested  after  two  years '    5  8 

Voting,  how  conducted .__ ]  q  7 

Voting,  when  may  commence .6  7 

What  notice  sufficient  on  special  election  for  issuing"bonds ""'  52 

EMINENT  DOMAIN—                                                                                   --  o 

Directors  may  condemn  land  or  water  rights 9  12 

Procedure  in  case  of  condemnation  of  land  or  water  right 9  12 

Public  use,  use  of  water  required  for  irrigation  9  12 
EXECUTOR— 

May  sign  petition  to  include  or  exclude  lands .                    24  27  12 

FINES— 

For  violation  of  sanitary  regulations  or  orders 91  20 

GUARDIAN— 

May  sign  petition  to  include  or  exclude  lands .     .                24  27  12 

IRRIGATION  DISTRICTS—  ' 

Action  in  excluding  lands  is  final  as  regards  validity  of  organization.  37 

Application  to  include  other  lands  need  not  be  written 38 

Are  public  corporations 37,  45 

Are  quasi-public  corporations '  30 

Bond  accompanying  petition,  amount  of 3  2 

Bond,  condition  to  pay  costs 3  2 

Cost  of  property  and  works  to  be  paid  from  Construction'Fuiid  !!!  19  37 

Description  in  petition,  and  in  the  order  establishing  boundaries  ..  37 

How  organized 3  1 

Land  not  included  in  the  petition  may  be  included 37 

Land  of  city  or  town  may  be  included 3  51 

Lands  of,  not  to  be  included  in  other  districts 5  3 

Must  be  divided  into  five  parts 4  2 

Notice  of  meeting  must  be  ^iven  in  every  county  where  land"  lies.  3  2 

Notice  of  meeting,  when  petition  presented '. 3  2 

Not  to  be  contested  after  two  years --_  _ 5  3 

Number  of  holders  required  to  organize... 3  l 

Order  establishing  boundaries  need  not  state  reasons  for  exclusion.  38 

Organization  and  running  expenses,  how  paid 19  19 

Order  of,  filing  with  Clerk  of  Supervisors  in  each  county 5  3 

Order  of,  must  be  filed  with  County  Recorder ." 5  3 

When  complete , 5  3 

Petition  must  be  accompanied  by  bond '.  3  2 

Petition  must  be  signed  by  required  number  of  holders 3  2 


—  75  — 


IRRIGATION  DISTRICTS— Continued.  Page. 

Petition  must  be  j)resented  at  regular  meeting  of  Board 3 

Petition  must  be  presented  to  Board  of  Supervisors 3 

Petition,  publication  in  each  county  where  land  lies 3 

Petition,  piiblication  of 3 

Proceedings  for  formation  to  be  liberally  construed 37 

Redividing  where  land  excluded _. 27 

Redividing  where  land  included 2-1 

Right  of  owner  to  have  land  included 4 

Supervisors,  discretion  in  including  town  not  reviewable 51 

Title  of  petitioner  for,  what  evidence  of  sufficient 3 

Vacancy  created  by  excluding  land,  filing  of 27 

MINES— 

Water  rights  of,  not  to  be  affected -. 21 

NAVIGATION— 

Not  to  be  impaired 21 

MISDEMEANOR— 

Oflticers  being  interested  in  contract 20 

NEW  TRIAL— 

On  petition  to  confirm  proceedings 29 

OFFICERS— 

Appointed,  term  of 8 

Bonds  required  of 5 

Certificate  of  election,  issuing 8 

Directors  of  district  may  fill  vacancy 8 

Qualifying 5 

Terms  of 5 

What  officers  to  be  elected 5 

When  may  enter  on  duties  of  office. 5 

PUBLIC  USE— 

Use  of  water  required  for  irrigation 9 

RIGHT  OF  WAY— 

Across  State  lands 19 

Railroads,  duty  of,  as  regards 19 

Works  may  be  constructed  across  any  stream,  railroad,  or  highway  19 

SALARIES— 

Officers,  Directors  shall  fix 19 

Petition  of  electors  to  fix 19,  20 

Schedule  of,  may  be  submitted  to  electors  on  petition 19 

SUPERVISORS— 

Duty  to  hear  petition •. 3 

Power  to  adjovirn  hearing.. 3 

title- 
To  property  acquired  under  irrigation  Acts.. 9 

TREASURER— 

Bond  of 5 

Claims,  how  must  be  drawn... 18 

County,  duty  to  report .  18 

County,  duty  to  receive  funds  of  district 18 

County,  upon  what  warrants,  and  to  whom,  funds  paid 18 

Duty  to  report 19 

WATERCOURSES— 

Apportionment  of,  where  insufficient... 20,  21 

Diversion  to  injury  of  vested  rights  not  allowed  without  compensa- 
tion  21 

How  apjiortioned 8 

Must  be  kept  flowing  to  full  capacity  of  ditches 21 


Section. 
2 
2 
2 
2 

11 
13 

2 

1 
10 

45 

45 

40 


10 
4 
10 
11 
4 
4 
3 
3 

12 

38 
88 
38 

39 
39 
39 

2 
2 

13 

4 

36 
26 
36 
36 
36 

43 

46 
11 

44 


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